Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization
program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through
public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the
eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding
held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset
to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and
GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or
other type of contract specified by the Highest Bidder in its strategic plan for the
Manila Hotel. . . .

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement
with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:
 a. Execution of the necessary contracts with GSIS/MHC not later than October
23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on

Privatization)/OGCC (Office of the Government Corporate Counsel) are
obtained. 3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per
share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check
issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid
and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First
Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila
Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the
nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino
people. To all intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that since
51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent
GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares
of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also
unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per share. 8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a
statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) . . .
Thus, for the said provision to Operate, there must be existing laws "to lay down conditions under which business
may be done." 9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony
which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel fall under the patrimonyof the nation. What is
more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still
inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of
the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason,
the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price
per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen
since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet
taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not
exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law.
Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It
is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined
as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be determined and all public
authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can
be determined by an examination and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and
have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar
to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore
and practically nullify the mandate of the fundamental law. 14 This can be cataclysmic. That is why the prevailing view
is, as it has always been, that

. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine
when, or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they
quote from discussions on the floor of the 1986 Constitutional Commission

MR. RODRIGO. Madam President, I am asking this question as the Chairman of

the Committee on Style. If the wording of "PREFERENCE" is given to
QUALIFIED FILIPINOS," can it be understood as a preference to qualified
 Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to

remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as
against whom? As against aliens or over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We use the word
"QUALIFIED" because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on the
setting up of other financial structures, et cetera (emphasis supplied by
respondents)

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes, 16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-
executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other further
laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor
details may be left to the legislature without impairing the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers
directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or
place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add
to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy
for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but
any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that the subject constitutional provision is
not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the
tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument
is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State
still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in
the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not
by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges
and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in
one part and non-self-executing in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles
and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to
legislation, not as judicially enforceable rights are simply not in point. Basco v. Philippine Amusements and
Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital
role of the youth in nation-building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino
v. Secretary of Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity
of family life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation and
development. 33 A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only
principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement.
From its very words the provision does not require any legislation to put it in operation. It is per sejudicially
enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering
national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by
its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a
right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains

The patrimony of the Nation that should be conserved and developed refers not only to out rich
natural resources but also to the cultural heritage of out race. It also refers to our intelligence in
arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and
other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks
of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very
well used the term natural resources, but also to the cultural heritage of the Filipinos.

Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was restrictively an
American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which have shaped Philippine history. It was
called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. 37During
World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political
activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was
the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and
frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have
actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the Filipino
First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the Hotel building nor the land upon which the building stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes corporations at
least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo

amendment. And the amendment would consist in substituting the words
"QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES
OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
 xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we

have to raise a question. Suppose it is a corporation that is 80-percent Filipino,
do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS"
may refer only to individuals and not to juridical personalities or entities.

39
MR. MONSOD. We agree, Madam President.

xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment be read
again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled entities or entities
fully-controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to

please restate his amendment so that I can ask a question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS."

MR FOZ. In connection with that amendment, if a foreign enterprise is qualified

and a Filipino enterprise is also qualified, will the Filipino enterprise still be given
a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues

MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE STATE
SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called "Filipino
First" policy. That means that Filipinos should be given preference in the grant of concessions,
privileges and rights covering the national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still
further clarified by Commissioner Nolledo 43

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy . . . This provision was never found in previous
Constitutions . . . .

The term "qualified Filipinos" simply means that preference shall be given to those citizens who can
make a viable contribution to the common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an indiscriminate preference would be
counter productive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a "qualified foreigner" end a "qualified Filipino," the latter shall be chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as
one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the
sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-
executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional
provision by the government itself is only too distressing. To adopt such a line of reasoning is to renounce the
duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt

The executive department has a constitutional duty to implement laws, including the Constitution,
even before Congress acts provided that there are discoverable legal standards for executive
action. When the executive acts, it must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which
by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that
the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of
the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct
from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is
a "public function;" (2) when the government is so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and
third categories of "state action." Without doubt therefore the transaction. although entered into by respondent GSIS,
is in fact a transaction of the State and therefore subject to the constitutional command. 46

When the Constitution addresses the State it refers not only to the people but also to the government as elements of
the State. After all, government is composed of three (3) divisions of power legislative, executive and judicial.
Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding
rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of
the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet,
nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all
the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental
law of the land. Those which violate the Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to
the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino,
there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino
matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning
to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution
and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which
investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since
petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless.
Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if
no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case
before us, while petitioner was already preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the
foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of
action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally
made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes
or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules,
respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm
clearly constitutes grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be
used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the
ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the
majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages
and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa

As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that
of the legislature or the executive about the wisdom and feasibility of legislation economic in nature,
the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic
progress and development . . . in connection with a temporary injunction issued by the Court's First
Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that the Philippine
legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable,
it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction.
It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and preventing further losses,
regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay
even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with
sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands of nationalism. 50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely
for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are
talking about a historic relic that has hosted many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila
Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the Filipino soul a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark
this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a
veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is
sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the
hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the
Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,

COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of
the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances
and to do such other acts and deeds as may be necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO
CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether
Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and
adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such
judgment must be reversed, there being a failure of the requisite showing to sustain an attack against its validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate
Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the
president and general manager of the second petitioner" against the respondent Mayor of the City of Manila who was
sued in his capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila
and to give the necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was
alleged that the petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its
eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly licensed by both
national and city authorities, regularly paying taxes, employing and giving livelihood to not less than 2,500 person and
representing an investment of more than P3 million." 1 (par. 2). It was then alleged that on June 13, 1963, the
Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-
Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3).

After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being
beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the
ground that in the revised charter of the City of Manila or in any other law, no reference is made to motels; that
Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due
process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class
motels; that the provision in the same section which would require the owner, manager, keeper or duly authorized
representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or
letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to
public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the
address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any,
with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well
as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up
and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with
such registration forms and records kept and bound together, it also being provided that the premises and facilities of
such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police,
or their duly authorized representatives is unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged
invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels
such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process
clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance
requiring second class motels to have a dining room; that the provision of Section 2 of the challenged ordinance
prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or
common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager,
keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a
subsequent conviction would, cause the automatic cancellation of the license of the offended party, in effect causing
the destruction of the business and loss of its investments, there is once again a transgression of the due process
clause.

There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance
null and void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering
respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963.

In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the
respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of
Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional
grounds. After setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears
a reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper exercise of the police
power and that only the guests or customers not before the court could complain of the alleged invasion of the right to
privacy and the guaranty against self incrimination, with the assertion that the issuance of the preliminary
injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28,
1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are
duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while
the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City
of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give
the necessary orders for the faithful execution and enforcement of such ordinances;

3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate
and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the
absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of Manila besides inserting therein three new sections. This
ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963 (Annex B);

5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed
ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the
105 hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of
the validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the
party who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a
memorandum likewise refuted point by point the arguments advanced by petitioners against its validity. Then barely
two weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what was set
forth in the petition, with citations of what they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and unenforceable" and making permanent the writ of
preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged
constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a
question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for
decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly
right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and
came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and,
therefore, null and void." It made permanent the preliminary injunction issued against respondent Mayor and his
agents "to restrain him from enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental
character ought to have admonished the lower court against such a sweeping condemnation of the challenged
ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards
of constitutional adjudication, in both procedural and substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of
validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The
presumption is all in favor of validity x x x . The action of the elected representatives of the people cannot be lightly
set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well
being of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. 2

It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or ordinance is void on its face which is not the case here. The principle has been
nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the
American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: The statute
here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on
the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the
resumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the
statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the
pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance
set aside.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the
due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not
cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public
morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of
substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been
properly characterized as the most essential, insistent and the least limitable of powers,4extending as it does "to all
the great public needs."5 It would be, to paraphrase another leading decision, to destroy the very purpose of the state
if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public
safety and the genera welfare.6 Negatively put, police power is "that inherent and plenary power in the State which
enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society.7

There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to
public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts,
speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to
the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus
become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the
clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill
up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several
other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and
guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from
operating for purpose other than legal" and at the same time, to increase "the income of the city government." It
would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the
ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing
vagrancy and classifying a pimp or procurer as a vagrant; 8 provide a license tax for and regulating the maintenance
or operation of public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of
panguingui on days other than Sundays or legal holidays; 13 prohibiting the operation of pinball machines;14 and
prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public morals.

On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power,
which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace,
good order, safety and general welfare of the people. In view of the requirements of due process, equal protection
and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the
life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be
considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other
applicable constitutional guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the
governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be
valid. What then is the standard of due process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter, from the imputation of legal infirmity
sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is
thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play. 17 It exacts fealty "to those strivings for justice" and
judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception with fixed
content unrelated to time, place and circumstances," 19 decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."20 Questions of due process are not to be treated
narrowly or pedantically in slavery to form or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal
lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It
would seem that what should be deemed unreasonable and what would amount to an abdication of the power to
govern is inaction in the face of an admitted deterioration of the state of public morals. To be more specific, the
Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with the enactment of the
challenged ordinance. A strong case must be found in the records, and, as has been set forth, none is even
attempted here to attach to an ordinance of such character the taint of nullity for an alleged failure to meet the due
process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment of
Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels,
the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness.

Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for
hotels and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000
annual fee and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that
municipal license fees could be classified into those imposed for regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or enterprises and for revenue purposes only.22 As was explained
more in detail in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police
power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the
license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former,
and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable,
oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of
imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course,
generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly
in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of
liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the
American Supreme Court that taxation may be made to implement the state's police power. Only the other day, this
Court had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so levied is
for public purposes, just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for
revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining
the amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power
measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of
significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them
of their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it
appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets
under certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the community may be
deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police
power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be
affected by the exercise of the police power embark in these occupations subject to the disadvantages which may
result from the legal exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the
owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or
the like, to lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full
payment shall be charged, call for a different conclusion. Again, such a limitation cannot be viewed as a
transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended
to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the
explanatory note, are being devoted. How could it then be arbitrary or oppressive when there appears a
correspondence between the undeniable existence of an undesirable situation and the legislative attempt at
correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty
which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these
different conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is
'liberty regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater good
of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for
the common good x x x The liberty of the citizen may be restrained in the interest of the public health, or of the public
order and safety, or otherwise within the proper scope of the police power." 28

A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said
law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state x x x To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be
made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty
and authority in his mind through education and personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all. 29

It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to
some extent given way to the assumption by the government of the right of intervention even in contractual relations
affected with public interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where
the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider. 32 How
justify then the allegation of a denial of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of
vagueness or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of
the alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners,
however, point to the requirement that a guest should give the name, relationship, age and sex of the companion or
companions as indefinite and uncertain in view of the necessity for determining whether the companion or
companions referred to are those arriving with the customer or guest at the time of the registry or entering the room
With him at about the same time or coming at any indefinite time later to join him; a proviso in one of its sections
which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of its
owners or operators; another proviso which from their standpoint would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked,
do these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the
question is to answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has been
consistently upheld that what makes a statute susceptible to such a charge is an enactment either forbidding or
requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to
its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree to
all the generalities about not supplying criminal laws with what they omit but there is no canon against using common
sense in construing laws as saying what they obviously mean."35

That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor
and determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far
from it. Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court
compels a reversal of the appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs.

Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.
 [G.R. NO. 122846 : January 20, 2009]

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT
CORPORATION, Petitioners, v. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S.
LIM, Respondent.

DECISION

TINGA, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted
anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension
between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels
and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated
city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or
"wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present
petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision 3 in
C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774 entitled,
"An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in
Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the
Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. 4 The Ordinance is
reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest,
health and welfare, and the morality of its constituents in general and the youth in particular.

SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels,
lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted
terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in
the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than
twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean the same or would bear the same
meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon
conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a]
juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party
shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or
any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory
relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) 5 with the Regional Trial
Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by
Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria
Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist
and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention7 on
the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in
Manila.8 The three companies are components of the Anito Group of Companies which owns and operates several
hotels and motels in Metro Manila.9

On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified the Solicitor General of the
proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw
as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a TRO on January 14,
1993, directing the City to cease and desist from enforcing the Ordinance. 13 The City filed an Answer dated January
22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement
of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the
Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the
case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance
null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and
void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded
by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and
the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation
that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying
for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where
the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-
province ban on the transport of carabaos and carabeef.

The City later filed a Petition for Review on Certiorariwith the Supreme Court.20 The petition was docketed as G.R.
No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a Petition
for Certiorariand referred the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to
Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the
power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses and other similar establishments, including tourist guides and transports. 22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the
Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the
prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city
and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense. 23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom
of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their
business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. 24 First, it
held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the
owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach
of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of
the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments
are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila,liberty
is regulated by law.

TC, WLC and STDC come to this Court via Petition for Review on Certiorari .25 In their petition and Memorandum,
petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed
Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners' standing. Petitioners allege that as owners of establishments
offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also
allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is
whether or not these establishments have the requisite standing to plead for protection of their patrons' equal
protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the
law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is
built on the principle of separation of powers,26 sparing as it does unnecessary interference or invalidation by the
judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. 27 The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise
definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as
well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and
elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer
suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance. 31

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are
appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of
litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have
suffered an 'injury-in-fact,' thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in
dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third
party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties Union in the United States may also be
construed as a hindrance for customers to bring suit.34

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or
invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by
state action. In Griswold v. Connecticut,35the United States Supreme Court held that physicians had standing to
challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are
considered in a suit involving those who have this kind of confidential relation to them." 36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held
that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The
United States High Court explained that the vendors had standing "by acting as advocates of the rights of third parties
who seek access to their market or function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of
the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech,
the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.39 In this
case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We
can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their
establishments for a "wash-rate" time frame.

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our
1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. 40 Ermita-
Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such
as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging
house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A
purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was
sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the singularity of the
localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public
morals including particular illicit activity in transient lodging establishments. This could be described as the middle
case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have
been severely restricted. At its core, this is another case about the extent to which the State can intrude into and
regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass
according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and
(6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the
conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to
protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls, 44 movie theaters,45gas stations46 and cockpits.47 The awesome
scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nation's legal
system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex,
prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of
the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their
achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal protection
questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they
exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another
form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate
many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third
political branch of government. We derive our respect and good standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of
rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching
constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III
of the Constitution. Due process evades a precise definition.48The purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as
a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty
insofar as their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on
government, "procedural due process" and "substantive due process." Procedural due process refers to the
procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due
process concerns itself with government action adhering to the established process when it makes an intrusion into
the private sphere. Examples range from the form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary
government action, provided the proper formalities are followed. Substantive due process completes the protection
envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a
person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected dynamism in
progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the frequency with which it has been utilized to
achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged
to determine the proper metes and bounds for its application.

C.
The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed
with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4 of
the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement of a "fundamental right." 52 Consequently, two
standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for
evaluating classifications based on gender53 and legitimacy.54Immediate scrutiny was adopted by the U.S. Supreme
Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been articulated in
equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. 57 Using the
rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental
interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less
restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality
and the amount of governmental interest brought to justify the regulation of fundamental freedoms. 60 Strict scrutiny is
used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. 61 The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, 62 judicial access63 and
interstate travel.64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners
at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury
to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard -
the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons - those persons who would be deprived of availing short time access or wash-up
rates to the lodging establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of
political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the
people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet
fundamental freedoms - which the people reflexively exercise any day without the impairing awareness of their
constitutional consequence - that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally
incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may
or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society and nature, in a manner innately understood by them
as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon.
Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to
be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[ 65] In accordance
with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of "liberty" must be broad indeed. 67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City
asserts before this Court that the subject establishments "have gained notoriety as venue of 'prostitution, adultery and
fornications' in Manila since they 'provide the necessary atmosphere for clandestine entry, presence and exit and
thus became the 'ideal haven for prostitutes and thrill-seekers.' "68 Whether or not this depiction of a mise-en-scene of
vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults
which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein
retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon
the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the
will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any
real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified
by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with
liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain
intrusions into the personal life of the citizen.70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very
legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose
pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to
wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any
person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than
having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of
lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power
measure. It must appear that the interests of the public generally, as distinguished from those of a particular class,
require an interference with private rights and the means must be reasonably necessary for the accomplishment of
the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to
be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or
property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power
whose exercise enjoys the presumption of validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is
a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged
in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification
of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the
unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is
skeptical of those who wish to depict our capital city - the Pearl of the Orient - as a modern-day Sodom or Gomorrah
for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept
that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and
vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such
perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that
would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply
by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers
through active police work would be more effective in easing the situation. So would the strict enforcement of existing
laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the
businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities.
Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers
a portion of the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from
needlessly intruding into the lives of its citizens. However well' -intentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons
without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a
day with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary
provided that such measures do not trample rights this Court is sworn to protect. 77 The notion that the promotion of
public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as a school of
philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which particular
behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different
interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as
a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to
legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal laws,
for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right
and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but
also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is
distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and
immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by
the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the
embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office,
and because they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is
hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left
to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of
the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6
Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the
status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present
opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative
power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of
a people, the personal liberty of a citizen, are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts
and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-
Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is
alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi
and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one
Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away
form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of the non-
Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is taken for the
Mangyan work of this province, no successful result will be obtained toward educating these
people.

"Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent
settlement,

"Whereas the provincial governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law and order, to direct
such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by
him and approved by the provincial board.
 "Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place
most convenient for the Mangyanes to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of
Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject
to the approval of the Honorable Secretary of the Interior, and

"Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said
homestead applications are previously recommended by the provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the
Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio
of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on
February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of
section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the
townships of Naujan and Pola and the Mangyans east of the Baco River including those in the
districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao,
Naujan Lake, not later than December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not
exceed in sixty days, in accordance with section 2759 of the revised Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the
governor of the same province copied in paragraph 3, were necessary measures for the protection of the
Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce
civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao
and are liable to be punished in accordance with section 2759 of Act No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro
but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in
question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor
and approved by the provincial board. The action was taken in accordance with section 2145 of the Administrative
Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners,
however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount
question which the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior
approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants
are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct
such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an
approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as
follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any non-Christian who shall
refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand
one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall
upon conviction be imprisonment for a period not exceeding sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this
section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916;
section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to
the Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is
also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category,
and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized
elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities
towards these "non-Christians," with particular regard for the legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III,
in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on
February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568.
Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order
that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in
harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to
use all the means most convenient to the attainment of these purposes. To carry out this work with success,
our Council of the Indies and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and
forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these
meetings it was resolved that indios be made to live in communities, and not to live in places divided and
separated from one another by sierras and mountains, wherein they are deprived of all spiritual and
temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise
to those human necessities which men are obliged to give one another. Having realized that convenience of
this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys,
presidents, and governors to execute with great care and moderation the concentration of
the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without
causing inconveniences, so that those who would not presently settle and who would see the good
treatment and the protection of those already in settlements would, of their own accord, present themselves,
and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has
been executed in the greater part of our Indies, we hereby order and decree that the same be complied with
in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the manner
and form prescribed by the laws of this title.

xxx xxx xxx

LAW VIII.
 Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands,
and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indioscan
have their live stock that they may not be mixed with those of the Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall
not be deprived of the lands and granaries which they may have in the places left by them. We hereby order
that no change shall be made in this respect, and that they be allowed to retain the lands held by them
previously so that they may cultivate them and profit therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove
thepueblos or the reducciones once constituted and founded, without our express order or that of the
viceroy, president, or the royal district court, provided, however, that the encomenderos, priests,
or indios request such a change or consent to it by offering or giving information to that en. And, because
these claims are often made for private interests and not for those of the indios, we hereby order that this
law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of
one thousand pesos shall be imposed upon the judge or encomendero who should violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion;
if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if
the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be
less than eighty indios but not less than forty, there should be not more than one mayor and one alderman,
who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by
Spaniards and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on
January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and
December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND
MULATTOES.
 We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reduccionesand towns and towns of the indios, because it has been found that some Spaniards who
deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living;
robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would
leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and
utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders
and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation,
increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the
acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents,
governors, and courts take great care in executing the law within their powers and avail themselves of the
cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-
breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses
and haciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from
their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less
advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-
General of the Philippine Islands of January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral
part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to
conscience and to humanity for all governments to civilize those backward races that might exist in the
nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the
moral and material advantages that may be acquired in those towns under the protection and vigilance
afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the
non-Christian races from the social life of the civilized and Christian towns; to allow any longer the
commission of depredations, precisely in the Island of Luzon wherein is located the seat of the
representative of the Government of the, metropolis.

It is but just to admit the fact that all the governments have occupied themselves with this most important
question, and that much has been heretofore accomplished with the help and self-denial of the missionary
fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the
principles of Christianity, but the means and the preaching employed to allure them have been insufficient to
complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and
in those which have not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the
prestige which the country demands and the inevitable duty which every government has in enforcing
respect and obedience to the national laws on the part of all who reside within the territory under its control, I
have proceeded in the premises by giving the most careful study of this serious question which involves
important interests for civilization, from the moral and material as well as the political standpoints. After
hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of
Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of
Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans,
Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held
for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding
in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and
the only form of accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the
following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the
common law, save those exceptions prescribed in this decree which are bases upon the differences of
instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its
territory.

2. The diverse rules which should be promulgated for each of these races which may be divided into
three classes; one, which comprises those which live isolated and roaming about without forming a town nor
a home; another, made up of those subdued pagans who have not as yet entered completely the social life;
and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and
the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the
work of having these races learn these rules. These rules shall have executive character, beginning with the
first day of next April, and, as to their compliance, they must be observed in the manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means
which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or
settlement already subdued, and shall adopt the necessary regulations for the appointment of local
authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing
up of means of communication, endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year
they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the
only exception that in the first two years they shall not be obliged to render personal services other than
those previously indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the
inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute
necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for
them and which prejudices the least their interest; and, in either of these cases, an effort must be made to
establish their homes with the reach of the sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed force composed
precisely of native Christian, the organization and service of which shall be determined in a regulations
based upon that of the abolished Tercios de Policia (division of the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties
affecting them and the liberty which they have as to where and now they shall till their lands and sell the
products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same
price and conditions allowed other producers, and with the prohibition against these new towns as well as
the others from engaging in commerce of any other transaction with the rebellious indios, the violation of
which shall be punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indiosshall
be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally
wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all
by this fact along be exempt for eight years from rendering personal labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains
igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their
families; concession of good lands and the right to cultivate them in the manner they wish and in the way
them deem most productive; support during a year, and clothes upon effecting submission; respect for their
habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own
accord as to whether they want to be Christians or not; the establishment of missions and families of
recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or
facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from
the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities
as the ones who elect such officials under the direct charge of the authorities of the province or district.

10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in
return, have the obligation of constituting their new towns, of constructing their town hall, schools, and
country roads which place them in communication with one another and with the Christians; provided, the
 location of these towns be distant from their actual residences, when the latter do not have the good
conditions of location and cultivations, and provided further the putting of families in a place so selected by
them be authorized in the towns already constituted.

11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the
peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April,
committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the
Captain General's Office shall proceed with the organization of the divisions of the Army which, in
conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the
expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the
military headquarters shall immediately order a detachment of the military staff to study the zones where
such operations shall take place and everything conducive to the successful accomplishment of the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my
authorities, local authorities, and other subordinates to may authority, civil as well as military authorities,
shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the
scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of
the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or
permanent commission which shall attend to and decide all the questions relative to the application of the
foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and
missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about
due compliance with this decree, shall be promulgated by the respective official centers within their
respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for
dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government in the Philippines was
President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section
1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed
by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed
by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and
government and under which many of these tribes are now living in peace and contentment, surrounded by
civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be
subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort
should be exercised to prevent barbarous practices and introduce civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines.
The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name
the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the
Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands.
The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other
non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916,
commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore
exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into
twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and
the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the Jones Law, was not
represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be
known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the
inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by
Moros or other non-Christian tribes, and the territory which Moros or other non-Christian tribes, and the territory which
is inhabited by Moros or other non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the Philippine Commission and
Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO.
82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila;
Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special
Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of
settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao
and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning
with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having
reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113,
1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela.
Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and
Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547:

No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL

GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in
civilization to make it practicable to bring them under any form of municipal government, the provincial
governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these
Manguianes to appoint officers from among them, to fix their designations and badges of office, and to
prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in
excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled
"An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva
Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized,
when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take
up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial
board. Manguianes who refuse to comply with such directions shall upon conviction be imprisonment for a
period not exceeding sixty days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the
knowledge and experience necessary for successful local popular government, and his supervision and
control over them shall be exercised to this end, an to the end that law and order and individual freedom
shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced
sufficiently to make such a course practicable, it may be organized under the provisions of sections one to
 sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the
geographical limits of such township shall be fixed by the provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby
expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in
the enactment of laws,' passed September twenty-sixth, nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last
named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the
Administrative Code of 1916. The two Administrative Codes retained the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice
with reference to the methods to be followed for their advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in
section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the
Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine
Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau.
Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550,
1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite
nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These
terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422,
2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well
as in Act No. 1667 of the Philippine Commission.

The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans.
(Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious
signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be
those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section
2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas,"
Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan
Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many
laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory"
of the Islands not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition
in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly."
The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of
the Philippine Islands inhabited by Moros or other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article,
preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The
specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These
are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-
government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.

It is well-known that within the specially organized provinces, there live persons some of who are Christians and
some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of
1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The
reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular
province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of
the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The
so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these
people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward
Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the
Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose
of the People of the United States as to the future political status of the Philippine Islands and to provide a more
autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906,
circulated by the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to
legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections
2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian
tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining
the most practicable means for bringing about their advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban
[Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with
article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the
point, the court makes use of the following language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-
Christians or members of uncivilized tribes, celebrated within that province without compliance with the
requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to
be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be
taken into consideration as a second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called upon to interpret and
enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating
to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior.
Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special
Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by
the Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were originally non-
Christian but have recently been baptized or who are children of persons who have been recently baptized
are, for the purposes of Act 1396 and 1397, to be considered Christian or non-Christians.
 It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far
in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is
so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt
the designation 'non-Christians' as the one most satisfactory, but the real purpose of the Commission was
not so much to legislate for people having any particular religious belief as for those lacking sufficient
advancement so that they could, to their own advantage, be brought under the Provincial Government Act
and the Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to which the person
baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will
give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may
recently have embraced Christianity.

The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of
regularly organized municipalities or what form of government shall be afforded to them should be the
degree of civilization to which they have attained and you are requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above
expressed and who will have the necessary instructions given to the governors of the provinces organized
under the Provincial Government Act. (Internal Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on
the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other better
classification has as yet been made the present classification should be allowed to stand . . . I believe the
term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30,
1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the
hold that it is indicative of religious denomination will make the law invalid as against that Constitutional
guaranty of religious freedom.

Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The
question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the
Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the
Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter
No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p.
214):

The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The
Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess
some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he
has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes
are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists,
etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In
other words, it is not so much a matter of a man's form of religious worship or profession that decides
whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized
manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this
question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and
living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a
prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he
was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians,
Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are
paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely
scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of
the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these
Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people
preserving their tribal relations are not subject thereto.
 (Sgd.) JNO. S. HORD,
Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the
Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads:

In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due
from members of non-Christian tribes when they come in from the hills for the purposes of settling down and
becoming members of the body politic of the Philippine Islands, the following clarification of the laws
governing such questions and digest of rulings thereunder is hereby published for the information of all
concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not
profess Christianity, but because of their uncivilized mode of life and low state of development. All
inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three
classes in so far as the cedula tax law is concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs
whatever tribal relations he may have had and attaches himself civilized community, belonging a member of
the body politic, he thereby makes himself subject to precisely the same law that governs the other
members of that community and from and after the date when he so attaches himself to the community the
same cedula and other taxes are due from him as from other members thereof. If he comes in after the
expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign
countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A,
D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to
pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is
subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor
even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his
mode of life, degree of advancement in civilization and connection or lack of connection with some civilized
community. For this reason so called "Remontados" and "Montescos" will be classed by this office as
members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned,
since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and
so forth are practically the same as those of the Igorrots and members of other recognized non-Christina
tribes.

Very respectfully,

(Sgd.) ELLIS CROMWELL,

Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1,
promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by
Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of
Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion
of the Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The
precise questions were these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By
purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself
liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same
authorities hereinbefore set out, concludes:
 In conformity with the above quoted constructions, it is probable that is probable that the person in question
remains a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same
make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these
should be the constructions place upon the law until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the
Administrative code which we are studying, we submit that said phrase does not have its natural meaning
which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or
uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who,
living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which
live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and
civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but,
without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression
which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the
Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657
(articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the
Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning
would make the law null and unconstitutional as making distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of
the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or
Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census,
Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and
Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the
Bureau of Insular Affairs, War Department, a sub-division under the title non-Christian tribes is, "Physical and Political
Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to
religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join
in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and,
more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart
from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided
them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de
Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that
the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to
certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that
island who bear it to-day, but its employed in three Filipino languages shows that the radical ngian had in all
these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from
which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that
these men were pushed back into the interior by the modern invaders, in whose language they were called
the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the
Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately
15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547,
have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal
government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for
the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-
called non-Christian people is said, on argument, to be practically identical with that followed by the United States
Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of
the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage."
The recognized relation between the Government of the United States and the Indians may be described as that of
guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The
Indians are always subject to the plenary authority of the United States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress
passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the
Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object
sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into
agriculturists."

A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S.,
375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to
regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then
proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of
which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both before and since the
Revolution, to the people of the United States, has always been an anomalous one and of a complex
character.

Following the policy of the European Governments in the discovery of American towards the Indians who
were found here, the colonies before the Revolution and the States and the United States since, have
recognized in the Indians a possessory right to the soil over which they roamed and hunted and established
occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were
forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority.
When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to
purchase it, a treaty with the tribe was the only mode in which this could be done. The United States
recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise.
With the Indians themselves these relation are equally difficult to define. They were, and always have been,
regarded as having a semi-independent position when they preserved their tribal relations; not as States, not
as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of
regulating their internal and social relations, and thus far not brought under the laws of the Union or of the
State within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the
wards of the nation. The are communities dependent on the United States. dependent largely for their daily
food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no
protection. Because of the local ill feeling, the people of the States where they are found are often their
deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of
the Federal Government with them and the treaties in which it has been promised, there arise the duty of
protection, and with it the power. This has always been recognized by the Executive and by Congress, and
by this court, whenever the question has arisen . . . The power of the General Government over these
remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as
well as to the safety of those among whom they dwell. it must exist in that government, because it never has
 existed anywhere else, because the theater of its exercise is within the geographical limits of the United
States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the
status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating
liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of
the different superintendent charged with guarding their interests and founds that these Indians are dependent upon
the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said
"that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection,
where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the
following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes,
but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to
the United States as a superior and civilized nation the power and the duty of exercising a fostering care and
protection over all dependent Indian communities within its borders, whether within its original territory or territory
subsequently acquired, and whether within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule
the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject
to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers
[1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218;
Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907],
204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286;
U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever,
therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws
and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and
property. (U.S. vs. Thomas [1894], 151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions.

The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas
corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ
of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians,
formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who
have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the
general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without
aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of
violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the
respondent, George Crook. The substance of the return to the writ was that the relators are individual members of,
and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place
within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at
the request of the Secretary of the Interior, the General of the Army had issued an order which required the
respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order,
he had caused the relators to be arrested on the Omaha Indian Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The
second question, of much greater importance, related to the right of the Government to arrest and hold the relators
for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In
discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly
tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the
purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government
almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an
extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It
is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld."
The decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the
right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he
may be confined or in custody under color of authority of the United States or where he is restrained of
liberty in violation of the constitution or laws of the United States.

2. That General George Crook, the respondent, being commander of the military department of the Platte,
has the custody of the relators, under color of authority of the United States, and in violation of the laws
therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the
respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and
have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do
not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof,
the relators must be discharged from custody, and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the
Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas
Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70
Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even
admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians
have been taken from different parts of the country and placed on these reservation, without any previous
consultation as to their own wishes, and that, when once so located, they have been made to remain on the
reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian
policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation
of the different Indian tribes in the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial
authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full
responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we
agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in
a multitude of case, namely: "The true distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to
be exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be
made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief
Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive
department or official. The Legislature may make decisions of executive departments of subordinate official thereof,
to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed.,
141.) The growing tendency in the decision is to give prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the
Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the
provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this
"necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the
Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the
United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes
provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably
to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters
arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the
long established practice of the Department, before saying that this language was not broad enough to warrant a
regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has
been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See
also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the
previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An exception to the general rule.
sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local
authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by
the provincial governor and the provincial board.

Who but the provincial governor and the provincial board, as the official representatives of the province, are better
qualified to judge "when such as course is deemed necessary in the interest of law and order?" As officials charged
with the administration of the province and the protection of its inhabitants, who but they are better fitted to select
sites which have the conditions most favorable for improving the people who have the misfortune of being in a
backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine
Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says
that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as
language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them,
is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious
beliefs, and is, consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to
mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the
Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated,
we do not feel free to discard the long continued meaning given to a common expression, especially as classification
of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action.
We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that
section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious
differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of to the Commission,
the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any
person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the
laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution
and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction,
without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The
protection afforded the individual is then as much for the non-Christian as for the Christian.

The conception of civil liberty has been variously expressed thus:

 Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty
by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on
right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of
high civilization, which the savage never understood, and never can understand. Liberty exists in proportion
to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that
man is free who is protected from injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought
not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is
only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.
(Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly
freed from restraint. There are manifold restraints to which every person is necessarily subject for the
common good. On any other basis, organized society could not exist with safety to its members. Society
based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
Real liberty for all could not exist under the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his person or his property, regardless of the injury
that may be done to others . . . There is, of course, a sphere with which the individual may asserts the
supremacy of his own will, and rightfully dispute the authority of any human government especially of any
free government existing under a written Constitution to interfere with the exercise of that will. But it is
equally true that in very well-ordered society charged with the duty of conserving the safety of its members,
the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be
subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable
conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community,
consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution
includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are
necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of
the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful
ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that
purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes
to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's
employment, the right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men.
(There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627;
Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902],
114 Wis., 530. See 6 R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as
understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the
good of the individual and for the greater good of the peace and order of society and the general well-being. No man
can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily
subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of
citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such
assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the
public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See
Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs.Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of
the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic
literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an
immunities under the protection of the general rules which govern society." To constitute "due process of law," as has
been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not
requisite a rule which is especially true where much must be left to the discretion of the administrative officers in
applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary
and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and
customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards
and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California
[1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony
with the general powers of the legislative department of the Government; second, that this law shall be reasonable in
its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that
it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil.,
104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on
circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U.
S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is
applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution
particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands;
nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly
convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the
"jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by
adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code,
prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage,
all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The
term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no
matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come
a description of the police power under which the State must act if section 2145 is to be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching
scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to
prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate
so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See
Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain
liberty by the exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and is not inaptly
termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill
Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the
on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that
mean security for the public welfare or do not arbitrarily interfere with the right of the individual.

The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police
power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the
police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of
Congress and those fundamental principles which lie at the foundation of all republican forms of government."
(Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any
constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to
ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should
be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be
remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the
advancement of the non-Christian people of the province; and (2) the only successfully method for educating the
Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The
protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of
introducing civilized customs among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following:

To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary
of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a
good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc.,
that there appears to be encouraging reaction by the boys to the work of the school the requirements of
which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat
trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since the beginning of the
institution definitely justify its continuance and development.

Of course, there were many who were protesting against that segregation. Such was naturally to be
expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the
press:

"It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life
and evade the influence of civilization. The Government will follow its policy to organize them into
political communities and to educate their children with the object of making them useful citizens of
this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and
on account of their ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."

The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has
adopted as the polaris of his administration "the advancement of the non-Christian elements of our population to
equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the
following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave
their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout the regions
inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their development and
the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians, to promote social
and commercial intercourse and maintain amicable relations among them and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

 ( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of
Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the non-Christian
people. These people are being taught and guided to improve their living conditions in order that they may
fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being
persuaded to abandon their wild habitat and settle in organized settlements. They are being made to
understand that it is the purpose of the Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid them to live and work, protect
them from involuntary servitude and abuse, educate their children, and show them the advantages of
leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and
objectives of the Government of leading them to economic, social, and political equality, and unification with
the more highly civilized inhabitants of the country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the so-called non-Christians,
and to promote their educational, agricultural, industrial, and economic development and advancement in civilization.
(Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the
aim of the Government towards the non-Christian people in the following unequivocal terms:

It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in
favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a
systematical, rapid, and complete manner the moral, material, economic, social, and political development of
those regions, always having in view the aim of rendering permanent the mutual intelligence between, and
complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago.
(Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people?
By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of
civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working
out for the ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on
the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate
neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands.
What the Government wished to do by bringing than into a reservation was to gather together the children for
educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this
method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has
been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are
to be improved, that they be gathered together. On these few reservations there live under restraint in some cases,
and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection
for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not
precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals
of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship
implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of
intelligence, and Filipinos who are a drag upon the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the
law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and
persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are
punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If
immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet,
unproductive regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and
thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard
and the sluggard. The great law of overwhelming necessity is all convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are
engaged in the works of destruction burning and destroying the forests and making illegal caigins
thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will
ultimately become of these people with the sort of liberty they wish to preserve and for which they are now
fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance
they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a
rightful way. They understand liberty as the right to do anything they will going from one place to another
in the mountains, burning and destroying forests and making illegal caigins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are
being deprived thereof without due process of law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of
law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in
a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what
liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the
welfare and advancement of the class of persons in question. It will mean that this people should be let
along in the mountains and in a permanent state of savagery without even the remotest hope of coming to
understand liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been placed in the
alternative of either letting them alone or guiding them in the path of civilization. The latter measure was
adopted as the one more in accord with humanity and with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the
education and civilization of such people and fitting them to be citizens. The progress of those people under
the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not
far distant when they will become useful citizens. In the light of what has already been accomplished which
has been winning the gratitude of most of the backward people, shall we give up the noble work simply
because a certain element, believing that their personal interests would be injured by such a measure has
come forward and challenged the authority of the Government to lead this people in the pat of civilization?
Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of
ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor
that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To
allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without
recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge,
the ability of the nation to deal with our backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are being taught and
guided to improve their living conditions. They are being made to understand that they object of the
government is to organize them politically into fixed and permanent communities. They are being aided to
live and work. Their children are being educated in a school especially established for them. In short,
 everything is being done from them in order that their advancement in civilization and material prosperity
may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a
condition compelled to do services for another. They do not work for anybody but for themselves. There is,
therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places under penalty of
imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and
wayfaring life, do not have permanent individual property. They move from one place to another as the
conditions of living warrants, and the entire space where they are roving about is the property of the nation,
the greater part being lands of public domain. Wandering from one place to another on the public lands, why
can not the government adopt a measure to concentrate them in a certain fixed place on the public lands,
instead of permitting them to roam all over the entire territory? This measure is necessary both in the
interest of the public as owner of the lands about which they are roving and for the proper accomplishment
of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will
always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you
can not make them live together and the noble intention of the Government of organizing them politically will
come to naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a general
conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not,
however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of
Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute
freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt,
this law and other similar were accepted and followed time and again without question.

It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a
prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The
answer would naturally be that the official into whose hands are given the enforcement of the law would have little or
not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry
out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there
always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of
grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression
is called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the
Government in the accomplishment of its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the
individual members of society be subordinated to the will of the Government? It is a question which has assailed the
very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to
be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the
Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to
some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular
degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a
along time to come will be, impossible for the courts to determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political
theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of
governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the
government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has
exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally
drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the
Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can
one say that due process of law has not been followed. To go back to our definition of due process of law and equal
protection of the law, there exists a law ; the law seems to be reasonable; it is enforced according to the regular
methods of procedure prescribed; and it applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would lead to the
determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of
the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200
Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes
before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the
principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing
conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public
welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is
wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as
sound reason and a true sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain,
if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the
present. The idea to unify the people of the Philippines so that they may approach the highest conception of
nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to
be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public
policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The
Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own
good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate
branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the
courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is
justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances."
(Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents,
the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the
general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but
with that broad conception which will make the courts as progressive and effective a force as are the other
departments of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of
his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement
in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further
of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat
analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is
the true ruling of the court. Costs shall be taxes against petitioners. So ordered.

Arellano, C.J., Torres and Avancea, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing, opinion.

The words "non-Christian' have a clear, definite and well settled signification when used in the Philippine statute-book
as a descriptive adjective, applied to "tribes," "people," or "inhabitants," dwelling in more or less remote districts and
provinces throughout the Islands.
Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-book, denote the
'low grace of civilization" of the individuals included in the class to which they are applied. To this I would add that the
tests for the determination of the fact that an individual or tribes is, or is not of the "non-Christian" are, and throughout
the period of American occupation always have been, "the mode of life, the degree of advancement in civilization,
and connection or lack of connection with some civilized community." (Cf. letter of Collector of Internal Revenue
dated September 17, 1910, and set out in the principal opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses that the standard of civilization to
which a specific tribe must be found to have advanced, to justify its removal from the class embraces with the
descriptive term "non-Christian," as that term is used in the Philippine statute-book, is that degree of civilization which
results in a mode of life within the tribe, such that it is feasible and practicable to extend to, and enforce upon its
membership the general laws and regulations, administrative, legislative, and judicial, which control the conduct of
the admitted civilized inhabitants of the Islands; a made of life, furthermore, which does not find expression in tribal
customs or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or
practices, or to expose to loss or peril the lives or property of those who may be brought in contact with members of
the tribe.

So the standard of civilization to which any given number or group of inhabitants of particular province in these
Islands, or any individual member of such a group, must be found to have advanced, in order to remove such group
or individual from the class embraced within the statutory description of "non-Christian," is that degree of civilization
which would naturally and normally result in the withdrawal by such persons of permanent allegiance or adherence to
a "non-Christian" tribe, had they at any time adhered to or maintained allegiance to such a tribe; and which would
qualify them whether they reside within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of
life independent of a apart from that maintain by such tribe, but a mode of life as would not be inimical to the lives or
property or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact.

The contention that, in this particular case, and without challenging the validity of the statute, the writ should issue
because of the failure to give these petitioners, as well as the rest of the fifteen thousand Manguianes affected by the
reconcentration order, an opportunity to be heard before any attempt was made to enforce it, begs the question and
is, of course, tantamount to a contention that there is no authority in law for the issuance of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained that degree of civilization which
would have made it practicable to serve notice upon, and give an opportunity for a real hearing, to all the members of
the tribe affected by the order, it may well be doubted whether the provincial board and the Secretary of the Interior
would have been justified in its enforcement By what proceeding known to the law, or to be specially adopted in a
particular case, could the offices of any province provide for a genuine hearing upon a proposal to issue a
reconcentration order upon a head-hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes
whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no fixed or known
place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in the United States
when tribes or groups of American Indians have been placed upon reservations; but since non-Christian head men
and chiefs in the Philippines have no lawful authority to bind their acts or their consent, the objection based on lack of
a hearing, would have the same force whether the issuance of a reconcentration order was or was not preceded by
a pow-wow of this kind.

The truth of the mater is that the power to provide for the issuance of such orders rests upon analogous principles to
those upon which the liberty and freedom or action of children and persons of unsound minds is restrained, without
consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great
master of all things," and is properly exercised only where certain individuals or groups of individual are found to be of
such a low grade of civilization that their own wishes cannot be permitted to determine their mode of life or place of
residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal attitude assume
toward them by the Insular Government is well illustrated by the following provisions found in the Administrative Code
of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It shall be the duty of the
Bureau of non-Christian tribes to continue the work for advancement and liberty in favor of the regions
 inhabited by non-Christian Filipinos and to foster by all adequate means and in a systematic, rapid, and
completely manner the moral, material, economic, social and political development of those regions, always
having in view the aim of rendering permanent the mutual intelligence between and complete fusion of all
the Christian and non-Christian elements populating the provinces of the Archipelago.

SEC. 2116. Township and settlement fund. There shall be maintained in the provincial treasuries of the
respective specially organized provinces a special fund to be known as the township and settlement fund,
which shall be available, exclusively, for expenditures for the benefit of the townships and settlements of the
province, and non-Christian inhabitants of the province, upon approval of the Secretary of the Interior.

As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts of these Islands
in habeas corpus proceedings, to review the action of the administrative authorities in the enforcement of
reconcentration orders issued, under authority of section 2145 of the Administrative Code, against a petitioner
challenging the alleged fact that he is a "non-Christian" as that term is used in the statute. I, therefore, express no
opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I cannot give my
consent to any act which deprives the humblest citizen of his just liberty without a hearing, whether he be a Christian
or non-Christian. All persons in the Philippine Islands are entitled to a hearing, at least, before they are deprived of
their liberty.

MOIR, J., dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to let this decision
go on record without expressing may strong dissent from the opinion of Justice Malcolm, concurred in by a majority of
the court. I shall not attempt to analyze the opinion or to go into the question in detail. I shall simply state, as briefly as
may be, the legal and human side of the case as it presents itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered by the Provincial
governor of Mindoro to remove their residence from their native habitat and to establish themselves on a reservation
at Tigbao in the Province of Mindoro and to remain there, or be punished by imprisonment if they escaped. This
reservation, as appears from the resolution of the provincial board, extends over an area of 800 hectares of land,
which is approximately 2,000 acres, on which about three hundred manguianes are confined. One of the
Manguianes, Dabalos, escaped from the reservation and was taken in hand by the provincial sheriff and placed in
prision at Calapan, solely because he escaped from the reservation. The Manguianes used out a writ of habeas
corpus in this court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion which states that
the provincial governor of Mindoro with the prior approval of his act by the Department Secretary ordered the placing
of the petitioners and others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have considerable
Negrito blood and have not advanced beyond the Negritos in civilization. They are peaceful, timid, primitive,
seminomadic people. They number approximately 15,000 (?). The manguianes have shown no desire for community
life, and, as indicated in the preamble to Act No. 547, have no progressed sufficiently in civilization to make it
practicable to bring them under any for of municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including smaller islands
which together make the Province of Mindoro) has an area of 3,851 square miles and a populations of 28, 361 of
which 7, 369 are wild or uncivilized tribes (Manguianes). This appears to be the total Mangyan population of the
province. The total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.

It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes [Magellan]
anchored his boats in the water of Cebu. They have made little or no progress in the ways of civilization. "They are a
peaceful, timid, primitive, seminomadic people," whom the Government of the Philippines Islands would bring under
the beneficient influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do not take kindly
to the ways provided for civilizing them section 2759 provides the punishment.

The attorney for the petitioners has raised various constitutional questions, but only the fundamental one will be
considered by me. It is that the sections of the Administrative Code, 2145 and 2759, quoted in the majority opinion,
are in violation of the first paragraph of section 3 of the Act of Congress of August 29, 1916, which reads as follows:

That no law shall be enacted in said Islands which shall deprive any person of life, liberty or property without
due process of law, or deny to any person therein the equal protection of the laws.

It is not necessary to argue that a Mangyan is one of the persons protected by that provision.

The Attorney-General argues that the treatment provided for the Manguianes is similar to that accorded the Indians in
the United States, and reference is made all through the court's decision to the decisions of the United States
Supreme Court with reference to the Indians. It is not considered necessary to go into these cases for the simple
reason that all the Indians nations in the United States were considered as separate nations and all acts taken in
regard to them were the result of separate treaties made by the United States Government with the Indian nations,
and, incompliance with these treaties, reservations were set apart for them on which they lived and were protected
form intrusion and molestation by white men. Some these reservations were larger than the Islands of Luzon, and
they were not measured in hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government of the Philippine Islands by
which they have agreed to live within a certain district where they are accorded exclusive rights. They are citizens of
the Philippine Islands. Legally they are Filipinos. They are entitled to all the rights and privileges of any other citizen
of this country. And when the provincial governor of the Province of Mindoro attempted to take them from their native
habitat and to hold them on the little reservation of about 800 hectares, he deprived them of their rights and their
liberty without due process of law, and they were denied the equal protection of the law.

The majority opinion says "they are restrained for their own good and the general good of the Philippines."

They are to be made to accept the civilization of the more advanced Filipinos whether they want it or not. They are
backward and deficient in culture and must be moved from their homes, however humble they may be and "bought
under the bells" and made to stay on a reservation.

Are these petitioners charged with any crime? There is no mention in the return of the Solicitor-General of the
Philippine Islands of any crime having been committed by these "peacefully, timid, primitive, semi-nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the majority opinion,
and from it I gather the nature of their offense which is that

Living a nomadic and wayfaring life and evading the influence of civilization, they (the manguianes) are
engaged in the works of destruction burning and destroying the forests and making
illegal caiginsthereon. No bringing any benefit to the State but, instead, injuring and damaging its interests,
what will ultimately become of those people with the sort of liberty they wish to preserve and for which they
are not fighting in court? They will ultimately become a heavy burden to the State and, on account of their
 ignorance, they will commit crimes and make depredations, or if not they will be subjected to involuntary
servitude by those who may want to abuse them.

There is no doubt in my mind that this people has not a right conception of liberty and does not practice
liberty in a rightful way. They understand liberty as the right to do anything they will going from one place
to another in the mountains, burning and destroying forests and making illegal caigins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they are being deprived
thereof without due process of law?

xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without due process of
law" apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty
in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what
liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the
welfare and advancement of the class of persons in question. It will mean that this people be let alone in the
mountains and in a permanent state of savagery without even the remotest hope of coming to understand
liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been placed in the
alternative of either letting them alone or guiding them in the path of civilization. The latter measure was
adopted as the one more in accord with humanity and with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the
education and civilization of such people and fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the Manguianes destroy the forest by
making a caigin. What is a "caigin?" Simply this. These people move their camp or place of abode frequently and
when they do move to a new place, it is necessary to clear the land in order to plant corn and camotes (sweet
potatoes) and they cut down the smaller trees and burn these around the larger ones, killing them, so that they can
plant their crops. The fires never spread in the tropical undergrowth of an island like Mindoro, but the trees within
the caigin are killed and crops are planted and harvested. This land may be abandoned later on due to
superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or to a natural desire to
move on.

Granting that the Manguianes do make caigins or clear lands in spots and then abandon them for the more fertile
lands, which every man knows to be just over the hills, we cannot see that they are committing such a great abuse as
to justify incarcerating them on a small tract of land for incarceration it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state and on account of their
ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who want to abuse them." They have never been a burden to the state and never will be. They have not
committed crimes and, when they do, let the law punish them." The authorities are anticipating too much from these
"peaceful, timid, primitive, semi-nomadic people." Their history does not demonstrate that we must expect them to
commit crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to involuntary
servitude by those want to abuse them." Are they more liable to be subjected to involuntary servitude when left free to
roam their native hills and gain a livelihood as they have been accustomed to for hundreds of years, than they will be
if closely confined on a narrow reservation from which they may not escape without facing a term in jail? Is not more
likely that they will be glad to exchange their "freedom" on a small reservation for the great boon of binding
themselves and their children to the more fortunate Christian Filipinos who will feed them and clothe them in return of
their services.?
It think it not only probable but almost a certainty that they will be all be subjected to involuntary personal servitude if
their freedom is limited as it has been. How will they live? There may be persons who are willing to lend them money
with which to buy food on the promise that they will work for them. And if they accept the loan and do not work for the
lender we have another law on the statute books, Act No. 2098, into whose noose they run their necks, and they may
be fined not more than two hundred pesos or imprisonment for not exceeding six months or both, and when the
sentence expires they must again go into debt or starve, and if they do not work will again go to jail, and this maybe
repeated till they are too old to work and are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not appear they were ever
consulted about their reconcentration. It does not appear that they had any hearing or were allowed to make any
defense. It seems they were gathered here and there whenever found by the authorities of the law and forcibly placed
upon the reservation, because they are "non-Christian," and because the provincial governor ordered it. Let it be
clear there is no discrimination because of religion. The term "non-Christian" means one who is not a Christian
Filipino, but it also means any of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes
are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together.
Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful
fields reclaimed by hard labor they have herds of cattle and horses and some few of them are well educated.
Some of the non-Christians, like the Aetas and the Negritos, are very low in the scale of civilization, but they are one
and all "non-Christians," as the term is used and understood in law and in fact.

All of them, according to the court's opinion under the present law, may be taken from their homes and herded on a
reservation at the instance of the provincial governor, with the prior approval of the department head. To state such a
monstrous proposition is to show the wickedness and illegality of the section of the law under which these people are
restrained of their liberty. But it is argued that there is no probability of the department head ever giving his approval
to such a crime, but the fact that he can do it and has done it in the present case in what makes the law
unconstitutional. The arbitrary and unrestricted power to do harm should be the measure by which a law's legality is
tested and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary body of
individuals; that the constitutional principles upon which our government and its institutions rest do not leave
room for the play and action of purely personal and arbitrary power, but that all in authority are guided and
limited by these provisions which the people have, the through the organic law, declared shall be the
measure and scope of all control exercised over them. In particular the fourteenth amendment, and
especially the equal protection clause, thereof, forbids that the individual shall be subjected to any arbitrary
exercise of the powers of government; it was intended to prohibit, and does prohibit, any arbitrary
deprivation of life or liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or which singles
out any particular individuals or class as the subject of hostile and discriminating legislation, is clearly
unconstitutional as being opposed to the fourteenth amendment and especially to the equal protection
clause thereof. This is a plain case, and requires no further discussion. (Vol. 4, Encyclopedia of U.S.
Supreme Court Reports, p. 366.)

When we consider the nature and the theory of our institutions of government, the principles upon which
they are supposed to rest, and review the history of their development, we are constrained to conclude that
they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty
itself is, of course, not subject to law, for its is the author and source of law; but in our system, while
sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts. And the law is the definition and limitation of power.
It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the
authority of final decision; and, in many cases of mere administration the responsibility is purely political, no
appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion
or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness,
considered as individual possessions, are secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in securing to men the blessings of civilization under
the reign of just and equal laws, so that, in the famous language of Massachusetts Bill of Rights, the
Government of Commonwealth "may be a government of law and not of men." For the very idea that one
man may be compelled to hold his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the Philippine Commission. But it has
never been brought before this court for determination of its constitutionality. No matter how beneficient the motives
of the lawmakers if the lawmakers if the law tends to deprive any man of life, liberty, or property without due process
law, it is void.

In may opinion the acts complained of which were taken in conformity with section 2145 of the Administrative Code
not only deprive these Manguianes of their liberty, without due process of law, but will in all probability deprive them
of their life, without due process of law. History teaches that to take a semi-nomadic tribe from their native fastnesses
and to transfer them to the narrow confines of a reservation is to invite disease an suffering and death. From my long
experience in the Islands, I should say that it would be a crime of title less magnitude to take the Ifugaos from their
mountain homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to
transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon from their fields
than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the same category as
the Manguianes. If the Manguianes may be so taken from their native habitat and reconcentrated on a reservation
in effect an open air jail then so may the Ifugaos, so may the Tinguianes, who have made more progress than the
Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine governors upon the
prior approval of the head of the department, have the power under this law to take the non-Christian inhabitants of
their different provinces form their homes and put them on a reservation for "their own good and the general good of
the Philippines," and the court will grant them no relief. These unfortunate citizens of the Philippine Islands would hold
their liberty, and their lives, may be, subject to the unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that some political enemy was a non-
Christian, and that he would be safer on the reservation. No matter what his education and culture, he could have no
trial, he could make no defense, the judge of the court might be in a distant province and not within reach, and the
provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should be quoted at
length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the laws of my country, I have never
been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under
consideration. On the one side, we have a few of the remnants of a once numerous and powerful, but now
weak, insignificant, unlettered, and generally despised race; and the other, we have the representative of
one of the most powerful, most enlightened, and most christianized nations of modern times. On the one
side, we have the representatives of this wasted race coming into this national tribunal of ours, asking for
justice and liberty to enable them to adopt our boasted civilization, and to pursue the arts of peace, which
have made us great and happy as a nation; on the other side, we have this magnificent, if not
magnanimous, government, resisting this application with the determination of sending these people back to
the country which is to them less desirable perpetual imprisonment in their own native land. But I think it is
creditable to the heart and mind of the brave and distinguished officer who is made respondent herein to say
that he has no sort of sympathy in the business in which he is forced by his position to bear a part so
conspicuous; and, so far as I am individually concerned, I think it not improper to say that, if the strongest
possible sympathy could give the relators title to freedom, they would have been restored to liberty the
moment the arguments in their behalf were closed. no examination or further thought would then have been
necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and
enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that
this case must be examined and decided on principles of law, and that unless the relators are entitled to
their discharge under the constitution or laws of the United States, or some treaty, they must be remanded
to the custody of the officer who caused their arrest, to be returned to the Indian Territory which they left
without the consent of the government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the session of the court
held at that time of Lincoln, presented their petition, duly verified, praying for the allowance of a writ
of habeas corpus and their final discharged from custody thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly belonged to the Ponca
tribe of Indians now located in the Indian Territory; that they had some time previously withdrawn from the
tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the
whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or
assistance from the general government; that whilst they were thus engaged, and without being guilty of
violating any of the laws of the United States, they were arrested and restrained of their liberty by order of
the respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April, and, the distance between the
place where the writ was made returnable and the place where the relators were confined being more than
twenty miles, ten days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention is therein shown.
The substance of the return to the writ, and the additional statement since filed, is that the relators are
individual members of, and connected with, the Ponca Tribe of Indians; that they had fled or escaped from a
reservation situated in some place within the limits of the indian Territory had departed therefrom without
permission from the government; and, at the request of the secretary of the interior, the general of the army
had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian
Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha
Indian reservation, and that they were in his custody for the purpose of being returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators had withdrawn and severed, for
all time, their connection with the tribe to which they belonged; and upon this point alone was there any
testimony produced by either party hereto. The other matter stated in the petition and the return to the writ
are conceded to be true; so that the questions to be determined are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of Indians, by which a
certain tract of country, north of the Niobrara river and west of the Missouri, was set apart for the permanent
home of the aid Indians, in which the government agreed to protect them during their good behaviour. But
just when or how, or why, or under what circumstances, the Indians left their reservation in Dakota and went
to the Indian Territory does not appear.

xxx xxx xxx

A question of much greater importance remains for consideration, which, when determined, will be decisive
of this whole controversy. This relates to the right of the government to arrest and hold the relators for a
time, for the purpose of being returned to a point in the Indian Territory from which it is alleged the Indians
escaped. I am not vain enough to think that I can do full justice to a question like the one under
consideration. But, as the mater furnishes so much valuable material for discussion, and so much food for
reflection, I shall try to present it as viewed from my own standpoint, without reference to consequences or
criticisms, which, though not specially invited, will be sure to follow.

xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and in it we find a
provision authorizing the secretary of the interior to use $25,000 for the removal of the Poncas to the Indian
Territory, and providing them a home therein, with consent of the tribe. (19 Sta., 192.)

xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the same, until two
or three years ago, when they removed therefrom, but whether by force or otherwise does not appear. At all
event, we find a portion of them, including the relators, located at some point in the Indian Territory. There,
the testimony seems to show, is where the trouble commenced. Standing Bear, the principal witness, states
 that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian
Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick
and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the
survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave
the Indian Territory and return to his old home, where, to use his own language, "he might live and die in
peace, and be buried with his fathers." He also stated that he informed the agent of their final purpose to
leave, never to return, and that he and his followers had finally, fully, and forever severed his and their
connection with the Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to
cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a
higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were
able to do so went to work to earn a living. The Omaha Indians, who speak the same language, and with
whom many of the Poncas have long continued to intermarry, gave them employment and ground to
cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus
employed, that they were arrested by order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, of removing
them by force from their own native plains and blood relations to a far-off country, in which they can see little
but new-made graves opening for their reception. The land from which they fled in fear has no attractions for
them. The love of home and native land was strong enough in the minds of these people to induce them to
brave every peril to return and live and die where they had been reared. The bones of the dead son of
Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved
and protected and formed a part of what was to them melancholy procession homeward. Such instances of
parental affections, and such love home and native land, may be heathen in origin, but it seems to that they
are not unlike Christian in principle.

And the court declared that the Indians were illegally held by authority of the United States and in violation of their
right to life, liberty, and the pursuit of happiness, and ordered their release from custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are unconstitutional,
null and void, and that the petitioners are illegally restrained of their liberty, and that they have been denied the equal
protection of the law, and order the respondents immediately to liberate all of the petitioners.

Footnotes
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch
XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes,
went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to
Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to
a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein
his name, passport number, the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however,
refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his
friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1'
x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with
masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for
final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused,
he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an
opening on one of the cellophane wrappers and took several grams of the contents thereof(tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory
examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau
of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).
 Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI
agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p.
38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the
package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a
"Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being
the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to
the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana
flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous
Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT
HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT
OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE
APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p.
1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the
1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized.
(Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which
are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81
S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible
any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling
earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not
affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and
is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of
evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by
the State acting through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was
primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional
right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private
individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution
cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by government, included in which is his residence, his papers, and
other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances
above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed
any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v.
United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right
against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous
cases, its protection applies to governmental action. Its origin and history clearly show that it was intended
as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other
than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to
 secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the
automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are
restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d
621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen the owner of a motel in
which appellant stayed overnight and in which he left behind a travel case containing the
evidence***complained of. The search was made on the motel owner's own initiative. Because of it, he
became suspicious, called the local police, informed them of the bag's contents, and made it available to the
authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a
search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing
appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should
not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the
evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument
stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an
illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery
of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI
and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the
shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain
sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on
the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71
L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of
the police at the specific request of the manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds
support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law
of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his
sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden
zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner
Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked
against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual,
not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by
police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and
fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be
emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of
either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof
(SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone
else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an
individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private
individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies,
in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and
communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the
undisputed fact that his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to
indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the
records, on the other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:
 You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate
the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional
right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination.
As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession
while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is
there any reference made to the testimony of appellant while under custodial investigation which was utilized in the
finding of conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of
the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met
in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the
country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary
to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour
could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and
for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the
trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the
other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol,
174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously
convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and
that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug
abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p.
66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself
such as the common experience and observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records
further show, appellant did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in
the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the
owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises
acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED. No costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

 EN BANC

G.R. No. 205357, September 02, 2014

GMA NETWORK, INC., Petitioner, v. COMMISSION ON ELECTIONS, RESPONDENT. SENATOR ALAN PETER
COMPAERO S. CAYETANO, Petitioner-Intervenor.

G.R. NO. 205374

ABC DEVELOPMENT CORPORATION, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

G.R. NO. 205592

MANILA BROADCASTING COMPANY, INC. AND NEWSOUNDS BROADCASTING NETWORK,

INC., Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

G.R. NO. 205852

KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) AND ABS-CBN

CORPORATION, Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

G.R. NO. 206360

RADIO MINDANAO NETWORK, INC., Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

PERALTA, J.:
The clash of rights demands a delicate balancing of interests approach which is a fundamental postulate of
constitutional law.1

Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights and
regulations, liberties and limitations, and competing demands of the different segments of society. Here, we are
confronted with the need to strike a workable and viable equilibrium between a constitutional mandate to maintain
free, orderly, honest, peaceful and credible elections, together with the aim of ensuring equal opportunity, time and
space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates,2on one hand, and the imperatives of a republican and democratic state,3 together with its
guaranteed rights of suffrage,4 freedom of speech and of the press,5 and the peoples right to information,6 on the
other.

In a nutshell, the present petitions may be seen as in search of the answer to the question how does the Charter
of a republican and democratic State achieve a viable and acceptable balance between liberty, without which,
government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable
and dangerous arrangement?

Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC) relative
to the conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the petitions
question the constitutionality of the limitations placed on aggregate airtime allowed to candidates and political parties,
as well as the requirements incident thereto, such as the need to report the same, and the sanctions imposed for
violations.

The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC
Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political parties
for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty
(180) minutes, respectively. They contend that such restrictive regulation on allowable broadcast time violates
freedom of the press, impairs the peoples right to suffrage as well as their right to information relative to the exercise
of their right to choose who to elect during the forthcoming elections.

The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes that
candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A.
No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said provision state,
thus:ChanRoblesVirtualawlibrary
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal
access to media time and space. The following guidelines may be amplified on by the COMELEC:
x x x x

6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not
more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than
sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.

During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and
interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes per station.7 For the May 2013 elections, however, respondent COMELEC
promulgated Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and
political parties' airtime limitation for political campaigns or advertisements from a per station basis, to a total
aggregate basis.

Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network, Incorporated
(GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio
Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks in the Philippines, while
petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting companies in
the Philippines representing operators of radio and television stations and said stations themselves. They sent their
respective letters to the COMELEC questioning the provisions of the aforementioned Resolution, thus, the
COMELEC held public hearings. Thereafter, on February 1, 2013, respondent issued Resolution No. 9631 amending
provisions of Resolution No. 9615. Nevertheless, petitioners still found the provisions objectionable and oppressive,
hence, the present petitions.

All of the petitioners assail the following provisions of the Resolution:ChanRoblesVirtualawlibrary

a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's franchise or permit,
imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in excess of the
size, duration, or frequency authorized in the new rules;

b) Section 9 (a),9 which provides for an aggregate total airtime instead of the previous per station airtime for
political campaigns or advertisements, and also required prior COMELEC approval for candidates' television and
radio guestings and appearances; and

c) Section 14,10 which provides for a candidate's right to reply.

In addition, petitioner ABC also questions Section 1 (4)11 thereof, which defines the term political advertisement or
election propaganda, while petitioner GMA further assails Section 35, 12 which states that any violation of said Rules
shall constitute an election offense.

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene and
to File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution dated March 19,
2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the interpretation of candidates' and
political parties' airtime limitation for political campaigns or advertisements from a per station basis, to a total
aggregate basis.

Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and
issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for the
reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit and
a vague meaning for a proper computation of aggregate total airtime, and violates the equal protection guarantee,
thereby defeating the intent and purpose of R.A. No. 9006.

Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be
informed on matters of public concern

Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible burden
on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may incur
administrative and criminal liability.

Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and
penalized as criminal offenses by R.A. No. 9006.

Section 14 of Resolution No. 9615, providing for a candidate's or political party's right to reply, is likewise assailed to
be unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for constituting prior
restraint and infringing petitioners' freedom of expression, speech and the press; and for being violative of the equal
protection guarantee.

In addition to the foregoing, petitioner GMA further argues that the Resolution was promulgated without public
consultations, in violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's
definition of the terms political advertisement and election propaganda suffers from overbreadth, thereby
producing a chilling effect, constituting prior restraint.

On the other hand, respondent posits in its Comment and Opposition13 dated March 8, 2013, that the petition should
be denied based on the following reasons:ChanRoblesVirtualawlibrary

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because the writ
of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
prohibition only lies against the exercise of judicial, quasi-judicial or ministerial functions. Said writs do not lie against
the COMELECs administrative or rule-making powers.

Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and freedoms they
enumerate are not personal to them, rather, they belong to candidates, political parties and the Filipino electorate in
general, as the limitations are imposed on candidates, not on media outlets. It argues that petitioners' alleged risk of
exposure to criminal liability is insufficient to give them legal standing as said fear of injury is highly speculative and
contingent on a future act.

Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.

Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No. 9006
as this would truly give life to the constitutional objective to equalize access to media during elections. It sees this as
a more effective way of levelling the playing field between candidates/political parties with enormous resources and
those without much. Moreover, the Comelecs issuance of the assailed Resolution is pursuant to Section 4, Article IX
(C) of the Constitution which vests on the Comelec the power to supervise and regulate, during election periods,
transportation and other public utilities, as well as mass media, to wit:ChanRoblesVirtualawlibrary
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.

This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion
amounting to lack of jurisdiction.

Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and
adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's
violation of airtime limits by putting in the proviso that the station may require buyer to warrant under oath that such
purchase [of airtime] is not in excess of size, duration or frequency authorized by law or these rules. Furthermore,
words should be understood in the sense that they have in common usage, and should be given their ordinary
meaning. Thus, in the provision for the right to reply, charges against candidates or parties must be understood in
the ordinary sense, referring to accusations or criticisms.

Respondent also sees no prior restraint in the provisions requiring notice to the Comelec for appearances or
guestings of candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24 hours
after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship. Further,
respondent argues, that for there to be prior restraint, official governmental restrictions on the press or other forms of
expression must be done in advance of actual publication or dissemination. Moreover, petitioners are only required
to inform the Comelec of candidates'/parties' guestings, but there is no regulation as to the content of the news or the
expressions in news interviews or news documentaries. Respondent then emphasized that the Supreme Court has
held that freedom of speech and the press may be limited in light of the duty of the Comelec to ensure equal access
to opportunities for public service.

With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona
fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and the
assailed Resolutions provide that said right can only be had after going through administrative due process. The
provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the
constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.

Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of political
advertisement or election propaganda suffers from overbreadth, as the extent or scope of what falls under said
terms is clearly stated in Section 1 (4) of Resolution No. 9615.

It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection clause,
because it does not make any substantial distinctions between national and regional and/or local broadcast stations,
and even without the aggregate total airtime rule, candidates and parties are likely to be more inclined to advertise in
national broadcast stations.

Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private property
without just compensation. Respondent emphasizes that radio and television broadcasting companies do not own
the airwaves and frequencies through which they transmit broadcast signals; they are merely given the temporary
privilege to use the same. Since they are merely enjoying a privilege, the same may be reasonably burdened with
some form of public service, in this case, to provide candidates with the opportunity to reply to charges aired against
them.

Lastly, respondent contends that the public consultation requirement does not apply to constitutional commissions
such as the Comelec, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section
9, Chapter II, Book VII of said Code provides, thus:ChanRoblesVirtualawlibrary
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable, publish or
circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the
adoption of any rule.

However, Section 1, Chapter 1, Book VII of said Code clearly provides:ChanRoblesVirtualawlibrary

Section 1. Scope. - This Book shall be applicable to all agencies as defined in the next succeeding section, except
the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating exclusively
to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges.

Nevertheless, even if public participation is not required, respondent still conducted a meeting with representatives of
the KBP and various media outfits on December 26, 2012, almost a month before the issuance of Resolution No.
9615.

On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-
arguments:ChanRoblesVirtualawlibrary

According to GMA, a petition for certiorari is the proper remedy to question the herein assailed Resolutions, which
should be considered as a decision, order or ruling of the Commission as mentioned in Section 1, Rule 37 of the
COMELEC Rules of Procedure which provides:ChanRoblesVirtualawlibrary
Section 1. Petition for Certiorari; and Time to File. - Unless otherwise provided by law, or by any specific provisions
in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of the matter justifies its resort to the
remedy of a petition for certiorari.

Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for declaratory relief
because such action only asks the court to make a proper interpretation of the rights of parties under a statute or
regulation. Such a petition does not nullify the assailed statute or regulation, or grant injunctive relief, which
petitioners are praying for in their petition. Thus, GMA maintains that a petition for certiorari is the proper remedy.

GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said law. GMA
points out that it has stated in its petition that the law in fact allows the sale or donation of airtime for political
advertisements and does not impose criminal liability against radio and television stations. What it is assailing is the
COMELEC's erroneous interpretation of the law's provisions by declaring such sale and/or donation of airtime
unlawful, which is contrary to the purpose of the Fair Election Act.

GMA then claims that it has legal standing to bring the present suit because:ChanRoblesVirtualawlibrary
x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability because of the alleged
unconstitutional and unlawful conduct of respondent COMELEC in expanding what was provided for in R.A. No.
9006. Second, the injury is traceable to the challenged action of respondent COMELEC, that is, the issuance of the
assailed Resolutions. Third, the injury is likely to be redressed by the remedy sought in petitioner GMA's Petition,
among others, for the Honorable Court to nullify the challenged pertinent provisions of the assailed
Resolutions.15cralawred

On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and purpose of
the Fair Election Act. It points out that the Fair Election Act even repealed the political ad ban found in the earlier law,
R.A. No. 6646. The Fair Election Act also speaks of equal opportunity and equal access, but said law never
mentioned equalizing the economic station of the rich and the poor, as a declared policy. Furthermore, in its opinion,
the supposed correlation between candidates' expenditures for TV ads and actually winning the elections, is a mere
illusion, as there are other various factors responsible for a candidate's winning the election. GMA then cites portions
of the deliberations of the Bicameral Conference Committee on the bills that led to the enactment of the Fair Election
Act, and alleges that this shows the legislative intent that airtime allocation should be on a per station basis. Thus,
GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC to issue the present Resolutions
imposing airtime limitations on an aggregate total basis.

It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them, because their
failure to strictly monitor the duration of total airtime that each candidate has purchased even from other stations
would expose their officials to criminal liability and risk losing the station's good reputation and goodwill, as well as its
franchise. It argues that the wordings of the Resolutions belie the COMELEC's claim that petitioners would only incur
liability if they knowingly sell airtime beyond the limits imposed by the Resolutions, because the element of
knowledge is clearly absent from the provisions thereof. This makes the provisions have the nature of malum
prohibitum.

Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that [t]he reviewing power of respondent COMELEC and its sole judgment of a news event
as a political advertisement are so pervasive under the assailed Resolutions, and provoke the distastes or chilling
effect of prior restraint16 as even a legitimate exercise of a constitutional right might expose it to legal
sanction. Thus, the governmental interest of leveling the playing field between rich and poor candidates cannot
justify the restriction on the freedoms of expression, speech and of the press.

On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code, pertinent
portions of which provide, thus:ChanRoblesVirtualawlibrary
Section 82. Lawful election propaganda. - Lawful election propaganda shall include:
xxxx

All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice
to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard:
Provided, That the Commission's authorization shall be published in two newspapers of general circulation
throughout the nation for at least twice within one week after the authorization has been granted.

There having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving
petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order, because the implementation of the
Resolutions in question will cause grave and irreparable damage to it by disrupting and emasculating its mandate to
provide television and radio services to the public, and by exposing it to the risk of incurring criminal and
administrative liability by requiring it to perform the impossible task of surveillance and monitoring, or the broadcasts
of other radio and television stations.

Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a Supplemental
Comment and Opposition17 where it further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee, allegedly adopting the Senate Bill
version setting the computation of airtime limits on a per candidate, not per station, basis. Thus, as enacted into law,
the wordings of Section 6 of the Fair Election Act shows that the airtime limit is imposed on a per candidate basis,
rather than on a per station basis. Furthermore, the COMELEC states that petitioner-intervenor Senator Cayetano is
wrong in arguing that there should be empirical data to support the need to change the computation of airtime limits
from a per station basis to a per candidate basis, because nothing in law obligates the COMELEC to support its
Resolutions with empirical data, as said airtime limit was a policy decision dictated by the legislature itself, which had
the necessary empirical and other data upon which to base said policy decision.

The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to recommend to
Congress effective measures to minimize election spending and in furtherance of such constitutional power, the
COMELEC issued the questioned Resolutions, in faithful implementation of the legislative intent and objectives of the
Fair Election Act.

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his name,
initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be charged against his airtime limits
by pointing out that what will be counted against a candidate's airtime and expenditures are those advertisements
that have been paid for or donated to them to which the candidate has given consent.

With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement of the
freedom of speech and expression, the COMELEC counters that the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction on the freedoms of speech and
expression, during election period, to promote an important and significant governmental interest, which is to
equalize, as far as practicable, the situation of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests.'19cralawred

Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on matters of
public concern, because in this case, the COMELEC is not withholding access to any public record.

On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency involved and to
prevent irreparable injury that may be caused to the petitioners if respondent COMELEC is not enjoined from
implementing Resolution No. 9615.

On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for Early
Resolution of the Consolidated Petitions.21cralawred

On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said Motion. Not long after,
ABC followed suit and filed its own Opposition to the Motion23 filed by the respondent.

In the interim, respondent filed a Second Supplemental Comment and Opposition 24 dated April 8, 2013.

In the Second Supplemental Comment and Opposition, respondent delved on points which were not previously
discussed in its earlier Comment and Supplemental Comment, particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.

Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the assailed
Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present petition.

Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006 conclusively
shows that congress intended the airtime limits to be computed on a per candidate and not on a per station
basis. In addition, the legal duty of monitoring lies with the COMELEC. Broadcast stations are merely required to
submit certain documents to aid the COMELEC in ensuring that candidates are not sold airtime in excess of the
allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to inform the
COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It is for monitoring purposes
only, not censorship. It does not control the subject matter of news broadcasts in anyway. Neither does it prevent
media outlets from covering candidates in news interviews, news events, and news documentaries, nor prevent the
candidates from appearing thereon.

As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior restraint on
the freedoms of expression, speech and the press, as it does not in any way restrict the airing of bona fide new
broadcasts. Media entities are free to report any news event, even if it should turn out to be unfavourable to a
candidate or party. The assailed Resolutions merely give the candidate or party the right to reply to such charges
published or aired against them in news broadcasts.

Moreover, respondent contends that the imposition of the penalty of suspension and revocation of franchise or permit
for the sale or donation of airtime beyond the allowable limits is sanctioned by the Omnibus Election Code.

Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a Resolution25consolidating
the case with the rest of the petitions and requiring respondent to comment thereon.

On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.26 Therein, respondent
stated that the petition filed by RMN repeats the issues that were raised in the previous petitions. Respondent,
likewise, reiterated its arguments that certiorari in not the proper remedy to question the assailed resolutions and that
RMN has no locus standi to file the present petition. Respondent maintains that the arguments raised by RMN, like
those raised by the other petitioners are without merit and that RMN is not entitled to the injunctive relief sought.

The petition is partly meritorious.

At the outset, although the subject of the present petitions are Resolutions promulgated by the COMELEC relative to
the conduct of the 2013 national and local elections, nevertheless the issues raised by the petitioners have not been
rendered moot and academic by the conclusion of the 2013 elections. Considering that the matters elevated to the
Court for resolution are susceptible to repetition in the conduct of future electoral exercises, these issues will be
resolved in the present action.
PROCEDURAL ASPECTS

Matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental
importance are presented before the Court. So the Court does again in this particular case.
Proper Remedy

Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to question
the assailed Resolutions of the Comelec. Technically, respondent may have a point. However, considering the very
important and pivotal issues raised, and the limited time, such technicality should not deter the Court from having to
make the final and definitive pronouncement that everyone else depends for enlightenment and guidance. [T]his
Court has in the past seen fit to step in and resolve petitions despite their being the subject of an improper remedy, in
view of the public importance of the issues raised therein. 27cralawred

It has been in the past, we do so again.

Locus Standi

Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to question the
personality of the parties invoking the Courts jurisdiction. The Court has routinely made reference to a liberalized
stance when it comes to petitions raising issues of transcendental importance to the country. Invariably, after some
discussions, the Court would eventually grant standing. 28cralawred

In this particular case, respondent also questions the standing of the petitioners. We rule for the petitioners. For
petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose ability to reach
out to the electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative to
their ability to carry out their tasks of disseminating information because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast companies invoking the injury that may be caused to their customers
or the public those who buy advertisements and the people who rely on their broadcasts what the Court said
in White Light Corporation v. City of Manila29 may dispose of the question. In that case, there was an issue as to
whether owners of establishments offering wash-up rates may have the requisite standing on behalf of their patrons
equal protection claims relative to an ordinance of the City of Manila which prohibited short-time or wash-up
accommodation in motels and similar establishments. The Court essentially condensed the issue in this manner:
[T]he crux of the matter is whether or not these establishments have the requisite standing to plead for protection of
their patrons equal protection rights.30 The Court then went on to hold:ChanRoblesVirtualawlibrary
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the
law or action challenged to support that partys participation in the case. More importantly, the doctrine of standing is
built on the principle of separation of powers, sparing as it does unnecessary interference or invalidation by the
judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise
definition. In this jurisdiction, the extancy of a direct and personal interest presents the most obvious cause, as well
as the standard test for a petitioners standing. In a similar vein, the United States Supreme Court reviewed and
elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer
suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are
appropriate. x x x

xxxx

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or
invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by
state action. x x x

xxxx

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of
the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech,
the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. In this
case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We
can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their
establishments for a wash-rate time frame.31

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their clients,
with more reason should establishments which publish and broadcast have the standing to assert the constitutional
freedom of speech of candidates and of the right to information of the public, not to speak of their own freedom of the
press. So, we uphold the standing of petitioners on that basis.
SUBSTANTIVE ASPECTS

Aggregate Time Limits

COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions relative to
the airtime limitations on political advertisements. This essentially consists in computing the airtime on
an aggregate basis involving all the media of broadcast communications compared to the past where it was done on
a per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties would be able to campaign through the air. The
question is accordingly whether this is within the power of the Comelec to do or not. The Court holds that it is not
within the power of the Comelec to do so.

a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006
[2001])32 one hundred (120) minutes of television advertisement and one-hundred eighty (180) minutes for radio
advertisement. For the 2004 elections, the respondent COMELEC promulgated Resolution No. 652033 implementing
the airtime limits by applying said limitation on a per stationbasis.34 Such manner of determining airtime limits was
likewise adopted for the 2007 elections, through Resolution No. 7767. 35 In the 2010 elections, under Resolution No.
8758,36 the same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615, as
amended by Resolution No. 9631, chose to aggregate the total broadcast time among the different broadcast media,
thus:ChanRoblesVirtualawlibrary
Section 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. All parties and
bona fide candidates shall have equal access to media time and space for their election propaganda during the
campaign period subject to the following requirements and/or limitations:ChanRoblesVirtualawlibrary

a. Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements or election
propaganda shall be, as follows:
For Not more than an aggregate total of one hundred (120) minutes of television
Candidates/Registered advertising, whether appearing on national, regional, or local, free or cable
Political parties for a television, and one hundred eighty (180) minutes of radio advertising, whether
National Elective airing on national, regional, or local radio, whether by purchase or donation
Position

For Candidates/Registered Not more than an aggregate total of sixty (60) minutes of television
Political parties for a Local advertising, whether appearing on national, regional, or local, free or cable
Elective Position television, and ninety (90) minutes of radio advertising, whether airing on
national, regional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color
motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during which they appear or are being
mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and the
cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paid for the
advertisements or to whom the said advertisements were donated.

x x x x37cralawred

Corollarily, petitioner-intervenor, Senator Cayetano, alleges:

6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent Comelec without
consultation with the candidates for the 2013 elections, affected parties such as media organizations, as well as the
general public. Worse, said change was put into effect without explaining the basis therefor and without showing any
data in support of such change. Respondent Comelec merely maintained that such action is meant to level the
playing field between the moneyed candidates and those who dont have enough resources, without particularizing
the empirical data upon which such a sweeping statement was based. This was evident in the public hearing held on
31 January 2013 where petitioner GMA, thru counsel, explained that no empirical data on the excesses or abuses of
broadcast media were brought to the attention of the public by respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus

xxxx

Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the authority of the
Commission is if we do not want to amplify and we think that the 120 or 180 is okay we cannot be compelled to
amplify. We think that 120 or 180 is okay, is enough.

Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the law and the law has been
enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?

Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in our
right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the
prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that 120 is
enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and what
is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are just raising our
concern on the manner of regulation because as it is right now, there is a changing mode or sentiments of the
Commission and the public has the right to know, was there rampant overspending on political ads in 2010, we were
not informed Your Honor. Was there abuse of the media in 2010, we were not informed Your Honor. So we would like
to know what is the basis of the sudden change in this limitation, Your Honor. . And law must have a consistent
interpretation that [is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is that if the Constitution allows us to
regulate and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the
discretion of the Commission. Which means if previous Commissions felt that expanding it should be part of our
authority that was a valid exercise if we reduce it to what is provided for by law which is 120-180 per medium, TV,
radio, that is also within the law and that is still within our prerogative as provided for by the Constitution. If you say
we have to expose the candidates to the public then I think the reaction should come, the negative reaction should
come from the candidates not from the media, unless you have some interest to protect directly. Is there any interest
on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we have been constantly (sic) as the
resolution says and even in the part involved because you will be getting some affirmative action time coming from
the media itself and Comelec time coming from the media itself. So we could like to be both involved in the whole
process of the exercise of the freedom of suffrage Your Honor.

Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the
playing field. That should be the paramount consideration. If we allow everybody to make use of all their time and all
radio time and TV time then there will be practically unlimited use of the mass media....

Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse of a (sic)
political ads in the mass media that became the basis of this change in interpretation Your Honor? We would like to
know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 2010?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none......
Atty. Lucila
Im sorry, Your Honor...

Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took... who had the more
moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No amount of law or
regulation can even level the playing filed (sic) as far as the economic station in life of the candidates are concern
(sic) our Honor.38

Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went on to allege
that:ChanRoblesVirtualawlibrary
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a), respondent
Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis. Indeed, no credence
should be given to the cliched explanation of respondent Comelec (i.e. leveling the playing field) in its published
statements which in itself is a mere reiteration of the rationale for the enactment of the political ad ban of Republic Act
No. 6646, and which has likewise been foisted when said political ad ban was lifted by R.A. 9006. 39

From the foregoing, it does appear that the Comelec did not have any other basis for coming up with a new manner
of determining allowable time limits except its own idea as to what should be the maximum number of minutes based
on its exercise of discretion as to how to level the playing field. The same could be encapsulized in the remark of the
Comelec Chairman that if the Constitution allows us to regulate and then it gives us the prerogative to amplify then
the prerogative to amplify you should leave this to the discretion of the Commission. 40cralawred

The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.
COMELEC is duty bound to come up
with reasonable basis for changing the
interpretation and implementation of
the airtime limits

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election
laws but it cannot exercise its powers without limitations or reasonable basis. It could not simply adopt measures or
regulations just because it feels that it is the right thing to do, in so far as it might be concerned. It does have
discretion, but such discretion is something that must be exercised within the bounds and intent of the law. The
COMELEC is not free to simply change the rules especially if it has consistently interpreted a legal provision in a
particular manner in the past. If ever it has to change the rules, the same must be properly explained with sufficient
basis.

Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the Resolution,
the respondent did not fully explain or justify the change in computing the airtime allowed candidates and political
parties, except to make reference to the need to level the playing field. If the per station basis was deemed
enough to comply with that objective in the past, why should it now be suddenly inadequate? And, the short answer
to that from the respondent, in a manner which smacks of overbearing exercise of discretion, is that it is within the
discretion of the COMELEC. As quoted in the transcript, the right to amplify is with the COMELEC. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then
that is the prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that
120 is enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and
what is unconstitutional about it?41cralawred

There is something basically wrong with that manner of explaining changes in administrative rules. For one, it does
not really provide a good basis for change. For another, those affected by such rules must be given a better
explanation why the previous rules are no longer good enough. As the Court has said in one
case:ChanRoblesVirtualawlibrary
While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC slavishly
follow precedent. However, we think it essential, for the sake of clarity and intellectual honesty, that if an
administrative agency decides inconsistently with previous action, that it explain thoroughly why a different result is
warranted, or if need be, why the previous standards should no longer apply or should be overturned. Such
explanation is warranted in order to sufficiently establish a decision as having rational basis. Any inconsistent
decision lacking thorough, ratiocination in support may be struck down as being arbitrary. And any decision with
absolutely nothing to support it is a nullity.42

What the COMELEC came up with does not measure up to that level of requirement and accountability which
elevates administrative rules to the level of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in those rules by which they are supposed
to live by, especially if there is a radical departure from the previous ones.

The COMELEC went beyond the

authority granted it by the law in
adopting aggregate basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently
provides:ChanRoblesVirtualawlibrary
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not
more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than
sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
donation; x x x

The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the totality
of possible broadcast in all television or radio stations. Senator Cayetano has called our attention to the legislative
intent relative to the airtime allowed that it should be on a per station basis.43cralawred

This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the previous
provision, Section 11(b) of Republic Act No. 6646,44 which prohibited direct political advertisements the so-called
political ad ban. If under the previous law, no candidate was allowed to directly buy or procure on his own his
broadcast or print campaign advertisements, and that he must get it through the COMELEC Time or COMELEC
Space, R.A. No. 9006 relieved him or her from that restriction and allowed him or her to broadcast time or print space
subject to the limitations set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law was not an
effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous law on the right
of suffrage and Philippine democracy, Congress decided to repeal such rule by enacting the Fair Election Act.

In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous law, the
sponsorship speech of Senator Raul Roco is enlightening:ChanRoblesVirtualawlibrary
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646. In view of the
importance of their appeal in connection with the thrusts of the bill, I hereby quote these sections in
full:ChanRoblesVirtualawlibrary

SEC. 85. Prohibited forms of election propaganda. It shall be unlawful:ChanRoblesVirtualawlibrary

(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote
for or against any candidate unless they hear the names and addresses of the printed and payor as required in
Section 84 hereof;

(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of
whatever size, shape, form or kind, advertising for or against any candidate or political party;

(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters,
fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandannas, matches, cigarettes
and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts
or T-shirts advertising a candidate;

(d) To show or display publicly any advertisement or propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen projections except telecasts which may be allowed as hereinafter
provided; and

(e) For any radio broadcasting or television station to sell or give free of charge airtime for campaign and other
political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission
pursuant thereto;

Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the
representative of the Commission upon specific authority of the Commission.

SEC. 10. Common Poster Areas. The Commission shall designate common poster areas in strategic public places
such as markets, barangay centers and the like wherein candidates can post, display or exhibit election propaganda
to announce or further their candidacy.

Whenever feasible common billboards may be installed by the Commission and/or non-partisan private or civic
organizations which the Commission may authorize whenever available, after due notice and hearing, in strategic
areas where it may readily be seen or read, with the heaviest pedestrian and/or vehicular traffic in the city or
municipality.

The space in such common poster areas or billboards shall be allocated free of charge, if feasible, equitably and
impartially among the candidates in the province, city or municipality.

SEC. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any place, whether private or public, except in common poster areas
and/or billboards provided in the immediately preceding section, at the candidates own residence, or at the campaign
headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8) each may be
displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours
after said meeting or rally; and

(b) For any newspapers, radio broadcasting or television station, or other mass media, or any person making use of
the mass media to sell or give for free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave
of absence from his work as such during the campaign.

The repeal of the provision on the Common Poster Area implements the strong recommendations of the Commission
on Elections during the hearings. It also seeks to apply the doctrine enunciated by the Supreme Court in the case
of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992. Here a unanimous Supreme
Court ruled: The COMELECs prohibition on the posting of decals and stickers on mobile places whether public or
private except [in] designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742. In so doing,
we move one step towards further ensuring free, orderly, honest, peaceful and credible elections as mandated by
the Constitution.45

Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to provide a more
expansive and liberal means by which the candidates, political parties, citizens and other stake holders in the periodic
electoral exercise may be given a chance to fully explain and expound on their candidacies and platforms of
governance, and for the electorate to be given a chance to know better the personalities behind the candidates. In
this regard, the media is also given a very important part in that undertaking of providing the means by which the
political exercise becomes an interactive process. All of these would be undermined and frustrated with the kind of
regulation that the respondent came up with.

The respondent gave its own understanding of the import of the legislative deliberations on the adoption of R.A. No.
9006 as follows:ChanRoblesVirtualawlibrary
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or political
party aggregate total airtime limits on political advertisements and election propaganda. This is evidenced by the
dropping of the per day per station language embodied in both versions of the House of Representatives and
Senate bills in favour of the each candidate and not more than limitations now found in Section 6 of R.A. 9006.

The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:ChanRoblesVirtualawlibrary
House Bill No. 9000:

SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:

Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx

A) The total airtime available to the candidate and political party, whether by purchase or by donation, shall be
limited to five (5) minutes per day in each television, cable television and radio stations during the applicable
campaign period.
Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. All registered parties and bona fide candidates shall have equal
access to media space and time. The following guidelines may be amplified by the COMELEC.
xxx xxx xxx

2. The total airtime available for each registered party and bona fide candidate whether by purchase or donation
shall not exceed a total of one (1) minute per day per television or radio station. (Emphasis supplied.)

As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the aggregate
airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature intended the computation to
be on per station basis, it could have left the original per day per station formulation. 46

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the
COMELEC wants this Court to put on the final language of the law. If anything, the change in language meant that
the computation must not be based on a per day basis for each television or radio station. The same could not
therefore lend itself to an understanding that the total allowable time is to be done on an aggregate basis for
all television or radio stations.

Clearly, the respondent in this instance went beyond its legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement. As we held in Lokin, Jr. v. Commission on Elections:47cralawred
The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of
all laws and regulations relative to the conduct of an election, has neither the authority nor the license to expand,
extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issued for that purpose
should always be in accord with the law to be implemented, and should not override, supplant, or modify the law. It is
basic that the IRRs should remain consistent with the law they intend to carry out.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must
be in harmony with the provisions of the law, and should be for the sole purpose of carrying the laws general
provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot
amend an act of Congress.48

In the case of Lokin, Jr., the COMELECs explanation that the Resolution then in question did not add anything but
merely reworded and rephrased the statutory provision did not persuade the Court. With more reason here since the
COMELEC not only reworded or rephrased the statutory provision it practically replaced it with its own idea of what
the law should be, a matter that certainly is not within its authority. As the Court said in Villegas v. Subido:49cralawred
One last word. Nothing is better settled in the law than that a public official exercises power, not rights. The
government itself is merely an agency through which the will of the state is expressed and enforced. Its officers
therefore are likewise agents entrusted with the responsibility of discharging its functions. As such there is no
presumption that they are empowered to act. There must be a delegation of such authority, either express or implied.
In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. That principle
cannot be sufficiently stressed. In the appropriate language of Chief Justice Hughes: It must be conceded that
departmental zeal may not be permitted to outrun the authority conferred by statute. Neither the high dignity of the
office nor the righteousness of the motive then is an acceptable substitute. Otherwise the rule of law becomes a
myth. Such an eventuality, we must take all pains to avoid.50

So it was then. So does the rule still remains the same.

Section 9 (a) of COMELEC Resolution

No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And
where there is a need to reach a large audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak and
to reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with
substantially reasonable means by which the communicator and the audience could effectively interact. Section 9 (a)
of COMELEC Resolution No. 9615, with its adoption of the aggregate-based airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the Fundamental Law. [F]reedom of speech,
of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of
democracy.51 Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest.

In regard to limitations on political speech relative to other state interests, an American case
observed:ChanRoblesVirtualawlibrary
A restriction on the amount of money a person or group can spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in
todays mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the
event. The electorates increasing dependence on television, radio, and other mass media for news and information
has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on the
quantity and diversity of political speech. The $1,000 ceiling on spending relative to a clearly identified candidate, 18
U.S.C. 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political
parties, and the institutional press from any significant use of the most effective modes of communication. Although
the Acts limitations on expenditures by campaign organizations and political parties provide substantially greater
room for discussion and debate, they would have required restrictions in the scope of a number of past congressional
and Presidential campaigns and would operate to constrain campaigning by candidates who raise sums in excess of
the spending ceiling.52

Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis
for determining the allowable air time that candidates and political parties may avail of. Petitioner GMA came up with
its analysis of the practical effects of such a regulation:ChanRoblesVirtualawlibrary
5.8. Given the reduction of a candidates airtime minutes in the New Rules, petitioner GMA estimates that a national
candidate will only have 120 minutes to utilize for his political advertisements in television during the whole campaign
period of 88 days, or will only have 81.81 seconds per day TV exposure allotment. If he chooses to place his
political advertisements in the 3 major TV networks in equal allocation, he will only have 27.27 seconds of airtime
per network per day. This barely translates to 1 advertisement spot on a 30-second spot basis in television.

5.9. With a 20-hour programming per day and considering the limits of a stations coverage, it will be difficult for 1
advertising spot to make a sensible and feasible communication to the public, or in political propaganda, to make
known [a candidates] qualifications and stand on public issues.

5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely three 30-second
advertising spots in television on a daily basis using the same assumptions above.

5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the commercial
advertisements in television are viewed by only 39.2% of the average total day household audience if such
advertisements are placed with petitioner GMA, the leading television network nationwide and in Mega Manila. In
effect, under the restrictive aggregate airtime limits in the New Rules, the three 30-second political advertisements of
a candidate in petitioner GMA will only be communicated to barely 40% of the viewing audience, not even the voting
population, but only in Mega Manila, which is defined by AGB Nielsen Philippines to cover Metro Manila and certain
urban areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga. Consequently, given the
voting population distribution and the drastically reduced supply of airtime as a result of the New Rules aggregate
airtime limits, a national candidate will be forced to use all of his airtime for political advertisements in television only
in urban areas such as Mega Manila as a political campaign tool to achieve maximum exposure.

5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the candidates in
the national elections, and the said candidates also enjoy the right to be voted upon by these informed populace. 53

The Court agrees. The assailed rule on aggregate-based airtime limits is unreasonable and arbitrary as it unduly
restricts and constrains the ability of candidates and political parties to reach out and communicate with the people.
Here, the adverted reason for imposing the aggregate-based airtime limits leveling the playing field does not
constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates
and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular
instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when
we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and
dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as
many of the electorates as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express himself a form of
suppression of his political speech.

Respondent itself states that [t]elevision is arguably the most cost-effective medium of dissemination. Even a slight
increase in television exposure can significantly boost a candidate's popularity, name recall and electability. 54 If that
be so, then drastically curtailing the ability of a candidate to effectively reach out to the electorate would unjustifiably
curtail his freedom to speak as a means of connecting with the people.

Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: In the First Amendment, the Founding Fathers gave the free press the protection it
must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The
Government's power to censor the press was abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of government and inform the people. Only a
free and unrestrained press can effectively expose deception in government. 55cralawred

In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a sounding
board, the people ultimately would be the victims.

Section 9 (a) of Resolution 9615 is

violative of the peoples
right to suffrage

Fundamental to the idea of a democratic and republican state is the right of the people to determine their own destiny
through the choice of leaders they may have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. It was said
that:ChanRoblesVirtualawlibrary
x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied
into the receptacular agencies wrought by the people through their Constitution in the interest of good government
and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority. He has a voice in his Government and whenever possible it is the solemn duty of the judiciary,
when called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is the
reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. x x x 56

It has also been said that [c]ompetition in ideas and governmental policies is at the core of our electoral process and
of the First Amendment freedoms.57 Candidates and political parties need adequate breathing space including the
means to disseminate their ideas. This could not be reasonably addressed by the very restrictive manner by which
the respondent implemented the time limits in regard to political advertisements in the broadcast media.

Resolution No. 9615 needs

prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing on
January 31, 2013 to explain what it had done, particularly on the aggregate-based air time limits. This circumstance
also renders the new regulation, particularly on the adoption of the aggregate-based airtime limit, questionable. It
must not be overlooked that the new Resolution introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such there is a need for adequate and effective means by
which they may be adopted, disseminated and implemented. In this regard, it is not enough that they be published
or explained after they have been adopted.

While it is true that the COMELEC is an independent office and not a mere administrative agency under the
Executive Department, rules which apply to the latter must also be deemed to similarly apply to the former, not as a
matter of administrative convenience but as a dictate of due process. And this assumes greater significance
considering the important and pivotal role that the COMELEC plays in the life of the nation. Thus, whatever might
have been said in Commissioner of Internal Revenue v. Court of Appeals,58 should also apply mutatis mutandis to the
COMELEC when it comes to promulgating rules and regulations which adversely affect, or impose a heavy and
substantial burden on, the citizenry in a matter that implicates the very nature of government we have
adopted:ChanRoblesVirtualawlibrary
It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs
nothing further than its bare issuance for it gives no real consequence more than what the law itself has already
prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the
burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be
heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.

A reading of RMC 3793, particularly considering the circumstances under which it has been issued, convinces us
that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of
past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as amended, but has, in fact and most
importantly, been made in order to place Hope Luxury, Premium More and Champion within the classification
of locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654.
Specifically, the new law would have its amendatory provisions applied to locally manufactured cigarettes which at
the time of its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply
interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of the requirements of
notice, of hearing, and of publication should not have been then ignored. 59

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in regard
to the new rule on aggregate airtime is declared defective and ineffectual.
Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any governmental rule
or regulation must be reasonable in its operations and its impositions. Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of the government in a manner that would not work unnecessary and
unjustifiable burdens on the citizenry. Petitioner GMA assails certain requirements imposed on broadcast stations as
unreasonable. It explained:ChanRoblesVirtualawlibrary
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations nationwide and 8 originating
television stations (including its main transmitter in Quezon City) which are authorized to dechain national programs
for airing and insertion of local content and advertisements.

5.41 In light of the New Rules wherein a candidates airtime minutes are applied on an aggregate basis and
considering that said Rules declare it unlawful in Section 7(d) thereof for a radio, television station or other mass
media to sell or give for free airtime to a candidate in excess of that allowed by law or by said New
Rules:ChanRoblesVirtualawlibrary
Section 7. Prohibited Forms of Election Propaganda During the campaign period, it is
unlawful:ChanRoblesVirtualawlibrary
xxx xxx xxx

(d) for any newspaper or publication, radio, television or cable television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time for campaign or
election propaganda purposes to any candidate or party in excess of the size, duration or frequency authorized
by law or these rules;
xxx xxx xxx

(Emphasis supplied)

petitioner GMA submits that compliance with the New Rules in order to avoid administrative or criminal liability would
be unfair, cruel and oppressive.

x x x x.

5.43 In the present situation wherein airtime minutes shall be shared by all television and radio stations, broadcast
mass media organizations would surely encounter insurmountable difficulties in monitoring the airtime minutes spent
by the numerous candidates for various elective positions, in real time.

5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there are 372 television
stations and 398 AM and 800 FM radio stations nationwide as of June 2012. In addition, there are 1,113 cable TV
providers authorized by the NTC to operate within the country as of the said date.

5.45 Given such numbers of broadcast entities and the necessity to monitor political advertisements pursuant to the
New Rules, petitioner GMA estimates that monitoring television broadcasts of all authorized television station would
involve 7,440 manhours per day. To aggravate matters, since a candidate may also spend his/her broadcasting
minutes on cable TV, additional 281,040 manhours per day would have to be spent in monitoring the various
channels carried by cable TV throughout the Philippines. As far as radio broadcasts (both AM and FM stations) are
concerned, around 23,960manhours per day would have to be devoted by petitioner GMA to obtain an accurate and
timely determination of a political candidates remaining airtime minutes. During the campaign period, petitioner GMA
would have to spend an estimated 27,494,720manhours in monitoring the election campaign commercials of the
different candidates in the country.

5.46 In order to carry-out the obligations imposed by the New Rules, petitioner GMA further estimates that it would
need to engage and train 39,055 additional persons on an eight-hour shift, and assign them all over the country to
perform the required monitoring of radio, television and cable TV broadcasts. In addition, it would likewise need to
allot radio, television, recording equipment and computers, as well as telecommunications equipment, for this
surveillance and monitoring exercise, thus imputing additional costs to the company. Attached herewith are the
computations explaining how the afore-said figures were derived and the conservative assumptions made by
petitioner GMA in reaching said figures, as Annex H.

5.47 Needless to say, such time, manpower requirements, expense and effort would have to be replicated by each
and every radio station to ensure that they have properly monitored around 33 national and more than 40,000 local
candidates airtime minutes and thus, prevent any risk of administrative and criminal liability. 60

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be the
result of a misappreciation of the real import of the regulation rather than a real and present threat to its broadcast
activities. The Court is more in agreement with the respondent when it explained that:ChanRoblesVirtualawlibrary
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain
documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits. These
documents include: (1) certified true copies of broadcast logs, certificates of performance, and certificates of
acceptance, or other analogous record on specified dates (Section 9[d] 3, Resolution No. 9615, in relation to Section
6.2, R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its signing (Section 6.3, R.A. 9006).
*****

[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real time. GMA
grossly exaggerates when it claims that the non-existent duty would require them to hire and train an astounding
additional 39,055 personnel working on eight-hour shifts all over the country.61

The Court holds, accordingly, that, contrary to petitioners contention, the Reporting Requirement for the Comelecs
monitoring is reasonable.

Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third paragraph of
Section 9 (a). As revised, the provision now reads:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered
by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events
sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC
and ensuring that parties and candidates were afforded equal opportunities to promote their candidacy, the
media entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region (NCR), the Education and Information Department (EID).
If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from
the first broadcast or publication. Nothing in the foregoing sentence shall be construed as relieving broadcasters,
in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules. 63

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement, contending,
among others, that it constitutes prior restraint. The Court finds otherwise. Such a requirement is a reasonable means
adopted by the COMELEC to ensure that parties and candidates are afforded equal opportunities to promote their
respective candidacies. Unlike the restrictive aggregate-based airtime limits, the directive to give prior notice is not
unduly burdensome and unreasonable, much less could it be characterized as prior restraint since there is no
restriction on dissemination of information before broadcast.

Additionally, it is relevant to point out that in the original Resolution No. 9615, the paragraph in issue was worded in
this wise:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered
by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events
sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision. To determine whether the appearance or
guesting in a program is bona fide, the broadcast stations or entities must show that (1) prior approval of the
Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the
presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from
the obligation imposed upon them under Sections 10 and 14 of these Rules. 64

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done to
modify the requirement from prior approval to prior notice. While the former may be suggestive of a censorial tone,
thus inviting a charge of prior restraint, the latter is more in the nature of a content-neutral regulation designed to
assist the poll body to undertake its job of ensuring fair elections without having to undertake any chore of approving
or disapproving certain expressions.
Also, the right to reply provision is reasonable

In the same way that the Court finds the prior notice requirement as not constitutionally infirm, it similarly concludes
that the right to reply provision is reasonable and consistent with the constitutional mandate.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:ChanRoblesVirtualawlibrary

SECTION 14. Right to Reply. All registered political parties, party-list groups or coalitions and bona
fide candidates shall have the right to reply to charges published or aired against them. The reply shall be given
publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the same
prominence or in the same page or section or in the same time slot as the first statement.

Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by
submitting within a non-extendible period of forty-eight hours from first broadcast or publication, a formal verified
claim against the media outlet to the COMELEC, through the appropriate RED. The claim shall include a detailed
enumeration of the circumstances and occurrences which warrant the invocation of the right to reply and must be
accompanied by supporting evidence, such a copy of the publication or recording of the television or radio broadcast,
as the case may be. If the supporting evidence is not yet available due to circumstances beyond the power of the
claimant, the latter shall supplement his claim as soon as the supporting evidence becomes available, without delay
on the part of the claimant. The claimant must likewise furnish a copy of the verified claim and its attachments to the
media outlet concerned prior to the filing of the claim with the COMELEC.

The COMELEC, through the RED, shall view the verified claim within forty-eight (48) hours from receipt thereof,
including supporting evidence, and if circumstances warrant, give notice to the media outlet involved for appropriate
action, which shall, within forty-eight (48) hours, submit its comment, answer or response to the RED, explaining the
action it has taken to address the claim. The media outlet must likewise furnish a copy of the said comment, answer
or response to the claimant invoking the right to reply.

Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate petition and/or
complaint before the Commission on Elections or its field offices, which shall be endorsed to the Clerk of Court.

The attack on the validity of the right to reply provision is primarily anchored on the alleged ground of prior restraint,
specifically in so far as such a requirement may have a chilling effect on speech or of the freedom of the press.

Petitioner ABC states, inter alia:

5.145. A conscious and detailed consideration of the interplay of the relevant interests the constitutional mandate
granting candidates the right to reply and the inviolability of the constitutional freedom of expression, speech, and the
press will show that the Right to Reply, as provided for in the Assailed Resolution, is an impermissible restraint on
these fundamental freedoms.

5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test) with respect to the present
controversy will show that the Constitution does not tilt the balance in favor of the Right to Reply provision in the
Assailed Resolution and the supposed governmental interest it attempts to further. 65

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, a task
addressed to the COMELEC to provide for a right to reply.66 Given that express constitutional mandate, it could be
seen that the Fundamental Law itself has weighed in on the balance to be struck between the freedom of the press
and the right to reply. Accordingly, one is not merely to see the equation as purely between the press and the right to
reply. Instead, the constitutionally-mandated desiderata of free, orderly, honest, peaceful, and credible elections
would necessarily have to be factored in trying to see where the balance lies between press and the demands of a
right-to-reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Commission on Elections.67cralawred
In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and
frequencies through which they transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service. x x x68

Relevant to this aspect are these passages from an American Supreme Court decision with regard to broadcasting,
right to reply requirements, and the limitations on speech:ChanRoblesVirtualawlibrary
We have long recognized that each medium of expression presents special First Amendment problems. Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it
is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers
cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be
deprived of his license and his forum if the Commission decides that such an action would serve the public interest,
convenience, and necessity. Similarly, although the First Amendment protects newspaper publishers from
being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the contrary, they must
give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L Ed 2d 371,
89 S Ct 1794.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast
media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent
material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home,
where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post
Office Dept., 397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in
and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say
that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the
remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option
does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written
message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's
vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the
expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making
indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government's
interest in the well-being of its youth and in supporting parents' claim to authority in their own household justified
the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent
broadcasting.69

Given the foregoing considerations, the traditional notions of preferring speech and the press over so many other
values of society do not readily lend itself to this particular matter. Instead, additional weight should be accorded on
the constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of petitioners
may more easily commend themselves for this Courts acceptance. But as noted above, this is not the case. Their
arguments simplistically provide minimal importance to that constitutional command to the point of marginalizing its
importance in the equation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter
must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving
teeth and substance to the right to reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution No.
9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No. 9615, as amended by Resolution No. 9631, is upheld
and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby
made PERMANENT.

SO ORDERED.cralawlaw library

Velasco, Jr., Leonardo-De Castro, Bersamin, Del Castillo, Villarama, Jr., Perez, Reyes,
Bernabe, and Jardeleza,***** JJ., concur.
Sereno, C.J., on official leave.
Carpio,** (Acting Chief Justice), see separate concurring opinion.
Brion,*** J., I certify that J. Brion left his vote concurring in the result. (signed by J. Carpio)
Mendoza,**** J., I certify that J. Mendoza lef his vote concurring with the ponencia. (signed by J. Carpio)
Leonen, J., see separate concurring opinion.